Court File and Parties

Date: October 11, 2016

IN THE MATTER OF

the Occupational Health and Safety Act, R.S.O. 1990, c. O.1

and

the Industrial Establishments Regulation, R.R.O. 1990, Reg. 851

Between

Her Majesty The Queen In Right Of Ontario (Ministry of Labour)

Prosecutor

and

Alpa Lumber Mills Inc. o/a Alpa Lumber Mills

and

Van Kham Sichantha

Defendants

Ontario Court of Justice Brampton, Ontario

Before: Quon J.P.

Reasons for Judgment

Trial Heard: May 11, 12, and 18, 2016

Judgment Released: October 11, 2016

Charges

(1) Alpa Lumber Mills Inc. o/a Alpa Lumber Mills failing as an employer to ensure that the measures and procedures prescribed by s. 26 of O. Reg. 851/90 were carried out at a workplace, contrary to s. 25(1)(c) of the O.H.S.A.

(2) Van Kham Sichantha failing as a supervisor to ensure that the measures and procedures prescribed by s. 26 of O. Reg. 851/90 were carried out at a workplace, contrary to s. 27(1)(a) of the O.H.S.A.

Counsel

C. Glaister, counsel, and A. Lewis, student-at-law, for the Ministry of Labour.

C. Foulon, counsel for the defendants, Alpa Lumber Mills Inc. and Van Sichantha.

1. INTRODUCTION

[1] In the dawn of a brave new world, technological advances have inevitably made machines safer and more foolproof for workers. To protect and prevent workers from being injured when these machines are being used to process various materials, manufacturers are building and designing them with many safety measures and safeguards. However, even with the best designed machines that have been built with many protective elements and redundant safety measures, accidents could occur and workers could still be injured by the operation of these supposedly foolproof machines when the manufacturer's instructions for the proper and safe operation of these machines are not followed or complied with. Ergo, machines may be built to be foolproof, but humans who use these machines are not themselves infallible.

[2] For this particular Occupational Health And Safety Act prosecution by Ontario's Ministry of Labour, Ma Phao, a worker at the Alpa Lumber Mills Inc. plant in King City, Ontario was injured on May 6, 2014, at approximately 8:00 a.m., when a one inch diameter shard or stake of wood measuring approximately 18 inches in length had been ejected from a rip saw machine ("Rip Saw #1") at a high velocity and then pierced Ma Phao's arm while he had been working nearby at a different rip saw machine. Ma Phao had been standing approximately 10 feet from the infeed opening of Rip saw #1 where he had been collecting and sorting wood coming out of the output end of Rip Saw #2, and unfortunately in the flight path of the stake of wood that had been ejected from the input end of Rip Saw #1. However, no type of protective barrier had been in place between the infeed end of Rip Saw #1 and where Ma Phao had been standing at the time of the accident, but one was subsequently put in place after the accident had occurred.

[3] Rip Saw #1 is a machine that had been built by a German manufacturer in 2007 and given the model name of ProfiRip KM 310. It is also a machine that had been designed and built with internal guards and several layers of protective measures to prevent splinters or shards of wood from escaping the machine during its operation and to also prevent the wood or lumber that is being fed into the machine for processing from being kicked back out by the machine's saw blades. As for the possibility of being injured by ejected fragments of wood, none of the witnesses who had worked in the processing plant and who had testified in the trial had ever observed a piece or shard of wood being ejected from any of the rip saw machines in the plant prior to the accident that had occurred on the morning of May 6, 2014, in which Ma Phao had been injured.

[4] After the police and the Ministry of Labour were notified about the workplace accident at the Alpa Lumber plant located at 13130 Dufferin Street in King City, Ontario, a Ministry of Labour inspector, later in the evening, attended the location of the workplace accident and placed a stop-use order on the particular rip saw machine that had ejected the stake of wood. Consequently, after completing his investigation into the accident, the Ministry of Labour inspector charged both Alpa Lumber Mills Inc. operating as Alpa Lumber Mills ("Alpa Lumber"), as the employer of the injured worker, and Van Kham Sichantha, as the supervisor of the injured worker, for failing to ensure that the measures and procedures prescribed by s. 26 of Ontario Regulation 851/90 were carried out at a workplace, namely in not ensuring that Rip Saw #1 had been guarded or shielded so that the product or material being processed, or waste stock produced by the machine, would not endanger the safety of any worker, which would be in contravention of s. 25(1)(c) and s. 27(1)(a), respectively, of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA").

[5] In defence of their respective charges as employer and supervisor (although the defendant, Van Kham Sichantha, who had been charged in his role as supervisor of the injured worker, did not testify), both defendants, Alpa Lumber and Van Kham Sichantha, argue that they did take all reasonable steps to prevent the event from occurring and to ensure that Rip Saw #1 had been shielded and guarded so as not to endanger the safety of its workers, since the machine had already contained shields and guards inside the machine that would have, or should have, prevented the accident. Moreover, the defendants submit that there are true accidents which can occur that cannot be satisfactorily explained as to why it had happened or to their specific cause. The defendants also submit that even Charles Charron, the professional engineer who had examined Rip Saw #1 two days after the accident, had testified that he had been baffled and puzzled with how the accident had occurred and how the stake of wood that had injured the worker could have escaped or been ejected from a machine that had been specifically designed and built with internal guards and shields and anti-kickback teeth or fingers to prevent the kickback of splinters or lumber.

[6] Furthermore, the defendants argue that Rip Saw #1 had been shielded and guarded because it had been manufactured with safety components comprising of an internal splinter guard to stop splinters from escaping from the machine and several levels of anti-kickback protection inside the machine to prevent the lumber being fed into Rip Saw #1 from being kicked back out of the infeed opening of the machine, and as such, the machine's shields and guards should have prevented the very accident that did occur on May 6, 2014, from happening, as well as being the very purpose why there are those shields and guards inside the machine.

[7] Moreover, in their roles respectively as employer and as supervisor, both defendants contend that the particular hazard or danger of a stake of wood being ejected out of Rip Saw #1 was not reasonably foreseeable, since no one had ever seen a piece or stake of wood ever being ejected from any of the rip saw machines at the plant and because lumber had been continuously fed into the rip saw machines over the last five years without incident, and that the rip saw machines had been designed and built with many safeguards and measures that would have, or should have, prevented slivers or stakes of wood from being ejected from the machine.

[8] The defendants also submit that the expert witness, Charles Charron, who is a professional engineer and who had been qualified as an expert in pre-start health and safety reviews of machines, had testified that Rip Saw #1 had been enclosed with a metal cover and had been designed and built with barriers, shields, and guards inside the machine, and that when the cover was down, then those built-in safety measures and the design of the machine would have prevented stakes of wood from flying out of the machine.

[9] In addition, the defendants contend that the manufacturer of Rip Saw #1 would have been acting negligently if it had indeed put that particular model of rip saw machine on the market, knowing full well that the risk or hazard of a stake of wood being ejected from the machine at a high velocity could happen at any moment when the machine is in operation. As such, the defendants contend that for their defence they should be able to rely on the numerous safeguards designed and built into Rip Saw #1 by the manufacturer to demonstrate that that they were not acting negligently and to show that they had taken all reasonable steps to properly and effectively guard and shield the machine so that no worker could be injured by wood flying out from the machine.

[10] In addition, both defendants contend, in the alternative, that they had reasonably believed (even though the defendant, Van Kham Sichantha, did not testify at trial) that the rip saw machine, as designed, would prevent a stake of wood from flying out of the machine, but were mistaken, since a stake of wood did fly out of the machine. In other words, both defendants had reasonably, but mistakenly believed, that the safeguards and preventative measures designed and built into Rip Saw #1 ought to have prevented the accident that had happened on May 6, 2014, from occurring, and that the number of protective measures and safeguards built and designed into the machine would have, or should have, prevented the stake of wood from flying out of the machine.

[11] Moreover, the defendants submit that they were aware that in order for those built-in protective measures and safeguards in Rip Saw #1 to be effective, then the machine had to be cleaned on regular basis and that the saw blades in the machine had to be also examined on a regular basis and changed if necessary, which had been what the manufacturer had said had to be done. Hence, in respect to ensuring that the rip saw machines at the plant were operating effectively and properly, the defendants contend that a system had been established at the plant so that both of the manufacturer's requirements of cleaning the machines regularly and checking and replacing the saw blades regularly were followed and complied with. In particular, the defendants submit that the saw blades in the machines were regularly checked and that the machines were cleaned four times during the day, at the same times each day. Therefore, the defendants submit that they have proven on a balance of probabilities that they had taken all reasonable care in the circumstances to ensure that Rip Saw #1 had been shielded or guarded so that the product or material being processed, or waste stock produced by the machine, would not endanger the safety of any worker; or alternatively, that they had a reasonable, but mistaken, belief that the guards and shields designed and built into Rip Saw #1 would prevent a stake of wood from being ejected out of the machine. As such, the defendants contend that they should both be acquitted of their respective charges.

[12] On the other hand, the prosecution submits that they have proven beyond a reasonable doubt that both defendants have breached their respective statutory duties under s. 26 of O. Reg. 851/90 that are imposed on employers and supervisors to ensure that a machine be shielded or guarded so that the product, material being processed, or waste stock would not endanger the safety of any worker. Specifically, the prosecution submits that both defendants have committed the actus reus of their respective offences beyond a reasonable doubt, as the evidence shows that a worker, Ma Phao, who had been standing 10 feet from the infeed opening of Rip Saw #1, had been injured by a splinter or piece of wood that had been ejected from that machine at a high velocity and that there had been no guard or shield in place between the infeed opening of Rip Saw #1 where the stake of wood had been ejected from and the spot where Ma Phao had been standing, which would have prevented workers from being endangered by a splinter or shard of wood that had been product or material being processed by the machine, and which had been ejected from the machine during its operation, as required under s. 26 of O. Reg. 851/90.

[13] And, in reply to whether either defendant has proven the defence of due diligence on a balance of probabilities, the prosecution submits that the key issue for this determination is whether in the circumstances a piece of wood escaping or being ejected from the rip saw machine had been a reasonably foreseeable risk or hazard, so as to obligate both defendants to take all reasonable steps to protect workers from injury from that foreseeable risk or hazard. Moreover, the prosecution submits that the test for reasonable foreseeability is not the foreseeability of how the accident had occurred in the way it did, but whether it had been reasonably foreseeable that a piece of wood could be kicked back or that splinters could be caused by the operation of the machine that could endanger workers.

[14] Ergo, the prosecution contends that the defendants had failed to meet their burden in proving on a balance of probabilities that they had taken all reasonable care in the circumstances to prevent the event from occurring, since the operation of rip saw machines are inherently dangerous and since the defendants had failed to take all reasonable steps in ensuring that the machine was guarded or shielded so as to prevent workers from being endangered by splinters or pieces of wood that could come out or kicked back out of the machine.

[15] And, in reply to the defendants' contention that they had a reasonable, but mistaken belief, that Rip Saw #1 had been properly and adequately guarded or shielded by the built-in shields or guards and that these internal shield and guards in Rip Saw #1 would have, or should have, prevented the stake of wood from flying out of the machine, the prosecution submits that the defendant's supposedly mistaken belief that Rip Saw #1 had been adequately shielded and guarded would distort the reasonable foreseeability test, considering that it had been reasonably foreseeable that the machine could produce splinters and fragments of wood, which would be material or product that could be kicked back out of the rip saw machine, and which could then require additional shields to protect workers once the material had been ejected from the machine . In other words, the prosecution argues that the mistake of fact defence had not been proven by either of the defendants on a balance of probabilities, since the shields and guards inside the machine were designed only to prevent splinters and kicked back material from escaping out of the machine, but not for shielding or protecting workers in the vicinity of Rip Saw #1 from being injured by materials or product once the material or product had been actually ejected from the machine, which is a hazard that had been reasonably foreseeable.

[16] Consequently, for the reasons that follow, the prosecution has proven that Alpa Lumber, as an employer, and Van Kham, as a supervisor, have committed the actus reus of their respective offences beyond a reasonable doubt, and because neither defendant has respectively met their burdens in proving either branch of the defence of due diligence on a balance of probabilities, then both defendants will be convicted of committing their respective charges.

[17] The trial of the two charges had been held over three days: May 11, 12, and 18, of 2016. After closing submissions, judgment was reserved and adjourned to October 11, 2016. These, therefore, are the written reasons for judgment:

2. THE CHARGES

[18] By a Part III information that was sworn on April 15, 2015, Alpa Lumber Mills Inc., operating as Alpa Lumber Mills, was charged in count #1, as an employer within the meaning of the OHSA, for failing to ensure that the measures and procedures prescribed under s. 26 of the Industrial Establishments Regulation, R.R.O. 1990, Reg. 851 ("O. Reg. 851/90"), were carried out at a workplace, contrary to s. 25(1)(c) of the OHSA, namely that it had failed to ensure that a machine had been shielded or guarded so that the product, material being processed, or waste stock, would not endanger the safety of any worker:

Alpa Lumber Mills Inc. o/a Alpa Lumber Mills

7630 Airport Road, Mississauga, Ontario, L4T 4G6,

on or about 6th day of May, 2014, at the Township of King, in the Central East Region of the Province of Ontario, did commit the offence of

failing, as an employer, to ensure that the measures and procedures prescribed by section 26 of Ontario Regulation 851/90, as amended, were carried out at a workplace located at 13130 Dufferin Street, King City, Ontario, contrary to s. 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended.

[19] Additionally, in the same information, Van Kham Sichantha was charged in count #2, as a supervisor within the meaning of the OHSA, for failing to ensure that the measures and procedures prescribed under s. 26 of O. Reg. 851/90 were carried out at a workplace, contrary to s. 27(1)(a) of the OHSA, namely that he had failed to ensure that a machine had been shielded or guarded so that the product, material being processed, or waste stock, would not endanger the safety of any worker:

Van Kham Sichantha

[municipal address removed for privacy], Newmarket, Ontario, L7B 1K5

on or about 6th day of May, 2014, at the Township of King, in the Central East Region of the Province of Ontario, did commit the offence of

failing, as a supervisor, to ensure that the measures and procedures prescribed by section 26 of Ontario Regulation 851/90, as amended, were carried out at a workplace located at 13130 Dufferin Street, King City, Ontario, contrary to s. 27(1)(a) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended.

3. BACKGROUND

(a) Eight Witnesses Testified In The Trial

[32] For the trial, eight witnesses testified. There were five witnesses for the Crown and three witnesses for the defence.

[33] For the Crown, their five witnesses were: (1) Mark Coulter, the M.O.L. inspector; (2) Anthony Coulter, an Alpa Lumber worker who put strapping on and stacking lumber for rip saw #2; (3) Ma Phao, the Alpa Lumber worker who had been injured by a piece of wood shot out from rip saw #1, testified through a Cambodian language interpreter; (4) Manulido Gonzales, an Alpa Lumber worker who was feeding lumber into Rip Saw #1, had testified through a Tagalog language interpreter; and (5) San Kim Loung, an Alpa Lumber worker who was gathering lumber after it had been cut on Rip Saw #1, had testified through a Vietnamese language interpreter.

[34] For the defence, their three witnesses were: (1) Charles Charron, an expert witness in the area of pre-start and health review for machines used in industrial establishments; (2) Vonusoth Sichantha, the Alpa Lumber worker who cleaned the lumber saws and rip saw machines before the shift commenced and three other times during the shift; and (3) Daniel Sperduti, the operations manager for Alpa Lumber.

(b) Did Anyone See The Shard Or Stake Of Wood Being Ejected Out Of Rip Saw #1 On The Morning Of May 6, 2014?

[35] Manulido Gonzales testified that he had been feeding lumber into Rip Saw #1 just before Ma Phao had been injured. Gonzales also said that Ma Phao had been standing behind him and sorting wood after it had been cut on Rip Saw #2. In addition, Gonzales said that after he had heard Rip Saw #1 make the strange noise that sounded like "gluck, gluck, gluck", he said he had observed a piece of wood being ejected from the infeed opening of Rip Saw #1 and fly pass him towards Rip Saw #2.

[36] However, none of the other workers who had testified at trial had said that they had observed a piece of wood being ejected from the infeed opening of a rip saw at the Alpa Lumber factory on the morning of May 6, 2014.

(c) How The Worker Had Been Injured In The Workplace

[37] At about 8:00 a.m. on May 6, 2014, workers had already been working at the rip saw machines in the Alpa Lumber wood processing plant for about an hour. Their day had started at 7:00 a.m. Three workers were working at Rip Saw #2. Anthony Coulter, the injured worker, Ma Phao, and another worker, which no one could remember or name. Anthony Coulter had been strapping and stacking lumber while another worker had been feeding pieces of lumber to be cut into Rip Saw #2. Ma Phao had been picking up and sorting lumber at the outfeed side of Rip Saw #2 and had been standing between Rip Saw #1 and Rip Saw #2, approximately 10 to 14 feet from the infeed opening of Rip Saw #1. Ma Phao specifically said he had been standing about 10 feet away from the infeed opening of Rip Saw #1.

[38] Three people were also working at Rip Saw #1. Sanh Kim Luong, Manulido Gonzales, and another worker were working at Rip Saw #1. Manulido Gonzales had been the worker feeding wood or lumber to be cut into Rip Saw #1, while Sanh Kim Luong had been collecting and sorting the lumber that had been cut at Rip Saw #1. The third worker at Rip Saw #1 was not named or identified by anyone in their testimony.

[39] The two rip saw machines were also set up and positioned in the Alpa Lumber plant so that they were in line with each other, where the outfeed end of Rip Saw #2 was practically along the same line or axis as the infeed end of Rip Saw #1. At the moment that Ma Phao had been injured, there had been no sort of barrier between the outfeed end of Rip Saw #2 and the infeed end of Rip Saw #1. The infeed end of a rip saw machine is where a worker would feed a piece of lumber into the machine for it to be cut into smaller widths or pieces of lumber. The outfeed end would be where the cut lumber or wood would come out of the rip saw machine. A worker would then collect the cut or processed lumber and then stack and sort the cut lumber.

[40] The distance between the infeed opening of Rip Saw #1 and the outfeed opening of Rip Saw #2 is approximately 18 to 20 feet apart. Ma Phao said he had been standing about 10 feet from the infeed opening of Rip Saw #1 when he was injured. He also said he had been had been standing between Rip Saw #1 and Rip Saw #2 and collecting and sorting lumber that measured 1" x 2" x 8 feet that had been coming out of the outfeed end of Rip Saw #2.

[41] While Ma Phao had been collecting and sorting the cut lumber at the output end of Rip Saw #2, he said he suddenly felt like he had been hit on his head and then felt a pain in his arm. When he looked at his left arm, he noticed that a shard of wood had been impaled into his arm just below his left elbow. Ma Phao described the length of the shard or stake of wood, as being as long as the distance between his elbow to the tip of his to his outstretched fingers. In describing the thickness of the stake of wood, Ma Phao described it as the thickness that the tips of his index finger and his middle finger held closely together and pointing in a straight line would be.

[42] In addition, Ma Phao said he had been wearing three layers of clothing at the time he was struck by the shard of wood. But more important, the shard of wood had been ejected from Rip Saw #1 with such velocity or force that it had been able to penetrate three layers of clothing and the arm of Ma Phao.

[43] And, just before the shard of wood had been ejected from Rip Saw #1 and entered the arm of Ma Phao, Anthony Coulter, who had been strapping and stacking lumber at the side of Rip Saw #2, said he had heard a funny sound coming from Rip Saw #1, which he described as a "crunching noise", just before he saw Ma Phao holding his arm that had a piece of wood in his arm. Ma Phao had also similarly described Rip Saw #1 making sounds just before the shard of wood came out of Rip Saw #1.

[44] Furthermore, except for Manulido Gonzales, who had been the worker feeding the lumber into the infeed end of Rip Saw #1, none of the other workers working at Rip Saw #1 and Rip Saw #2 had actually seen the stake of wood ejected from Rip Saw #1. In Gonzales' observation of the event, he said he had heard a noise when he had fed wood into the machine and then saw something come out and move away. In particular, Gonzales said he had observed a broken piece of wood come out from inside the machine back through the infeed opening and then went towards the other rip saw machine. However, Gonzales said he had never seen this happen before.

[45] As well, the other workers, who worked with the rip saw machines at Alpa Lumber, had testified that they had never seen a stake of wood or a piece of wood being ejected from the infeed opening of any of the rip saw machines at the plant. Only, Ma Phao, the injured worker, testified to having heard from others about this happening before, but did not elaborate or give any details or circumstances about what he had heard about pieces of wood being ejected out of a rip saw machine.

[46] Moreover, no one, including Charles Charron, the expert witness, could explain how it had been possible that a stake of wood could be ejected from Rip Saw #1, which had been built and designed with several levels of protective measures, shields, and guards for preventing splinters and shards of wood from escaping or from being kicked back out of the infeed end of the machine.

(d) The Stop-Use Order Issued By MOL Inspector Coulter

[47] MOL Inspector Mark Coulter had arrived at the site of the accident at 13130 Dufferin St., King City, Ontario, at 7:51 p.m. on May 6, 2014. MOL Inspector Coulter put a stop-use order on Rip Saw #1 and required that Rip Saw #1 be tested and reviewed by a professional engineer at the expense of Alpa Lumber and to supply a professional engineer's report bearing their seal and signature to the MOL stating that the equipment or make of device is not likely to endanger any worker before he would lift the stop-use order.

[48] After he received the verbal opinion of Charles Charron, a professional engineer, that Rip Saw #1 would not likely endanger any worker, MOL Inspector Coulter lifted his stop-use order. This had been done on May 14, 2014.

(e) The Corporate Defendant Is Alpa Lumber Mills Inc. O/A Alpa Lumber Mills

[49] The corporate defendant is an Ontario corporation named Alpa Lumber Mills Inc., with an Ontario corporation number of 948032. It was incorporated on June 27, 1991, and is an active corporation. The registered address of the defendant corporation is 7630 Airport Road, Mississauga, Ontario.

[50] The corporate defendant, Alpa Lumber Mills Inc., operates the wood processing or lumber mill plant under the style name of Alpa Lumber Mills, which is a business name registered to the corporate defendant.

(f) The Wood Processing Plant And Lumber Mill In King City, Ontario

[51] The Alpa Lumber plant where the worker was struck and injured by a shard or stake of wood ejected from a rip saw machine is located at 13130 Dufferin Street, King City, Ontario.

[52] There are approximately 50 people who work at the 13130 Dufferin Street plant. At that plant, various forest or wood products are manufactured and distributed to industrial establishments, distributors, and retail lumber yards in southern Ontario and the United States.

[53] In addition, there are band saws and four to six rip saw machines set up in the plant.

[54] The workers at the plant start their work day at 7:00 a.m. The workers also have rest breaks in the morning and in the afternoon, as well as a lunch break. During those breaks and at 6:00 a.m. before the shift starts, Vonusoth Sichantha, cleans the rip saw machines and checks the saw blades in the rip saw machines and changes them when it is necessary to do so. He does this cleaning and the checking of the saw blades four times every day.

[55] Workers in the plant also rotate their duties.

[56] Moreover, Charles Charron, the expert witness, opined that the Alpa Lumber plant is very clean for a woodworking plant.

(g) The Number Of Workers Working At Rip Saw #1 And Rip Saw #2 At The Time Of The Accident

[57] There were three workers working at Rip Saw #1 and three workers working at Rip Saw #2 on May 6, 2014 at the time of the accident. At Rip Saw #1, the workers that had been identified were San Kim Loung who had been working as the sorter and collector of the cut wood at the outfeed opening of Rip Saw #1, while Manulido Gonzales had been the worker feeding the lumber into the infeed opening of Rip Saw #1. There was also a third but unidentified and unnamed worker at Rip Saw #1. For Rip Saw #2, Ma Phao had been identified as the sorter or collector of cut wood at the outfeed end of Rip Saw #2, while an unidentified and unnamed worker had been feeding lumber into the infeed opening of Rip Saw #2. The third worker at Rip Saw #2 had been identified as Anthony Coulter who had been strapping and stacking wood at that machine.

(h) Who Was The Injured Worker's Employer On The Day Of The Accident?

[58] Ma Phao, the injured worker, had testified that he is employed by Alpa Lumber. Therefore, the prosecution has proven beyond a reasonable doubt, that for the purposes of the OHSA, the corporate defendant, Alpa Lumber, had been the injured worker's employer at the time of the accident on May 6, 2014.

(i) Who Was The Injured Worker's Supervisor On The Day Of The Accident?

[59] On the day he was injured, Ma Phao, testified that his supervisor had been Van Kham Sichantha. Anthony Coulter, who had also been working at Rip Saw #2, also said his supervisor had been Van Kham Sichantha and that Van Kham Sichantha was the one who gave him instructions and that Coulter would also report to him. In addition, Manulido Gonzales, who had been feeding lumber into Rip Saw #1 had also identified his supervisor as Van Kham Sichantha. And, Sanh Kim Luong, who had been collecting the lumber cut at Rip Saw #1, also had identified his supervisor as Van Kham Sichantha. Furthermore, Vonusoth Sichantha, who was responsible for cleaning the rip saw machines at the plant also said his supervisor had been Van Kham Sichantha.

[60] Accordingly, the prosecution has proven beyond a reasonable doubt, that for the purposes of the OHSA, the defendant, Van Kham Sichantha, had been the injured worker's supervisor at the time of the accident on May 6, 2014.

(j) The Safeguards And Preventive Measures Built Into Rip Saw #1

[61] Rip Saw #1 is a German-made machine. It was manufactured in 2007.

[62] The machine is used for cutting lengths of wood or lumber of wood into smaller widths of pieces of wood. It also has built-in anti-kickback measures and splinter protection to prevent splinters or fragments of wood or the piece of lumber being fed into the machine from being kicked back out through the infeed opening of the machine.

[63] At the time of the accident, eight-foot lengths of lumber were being fed into the infeed opening of Rip Saw #1. The size of the eight-foot lengths of lumber being fed into the machine for that particular production or job were four inches by one inch pieces of lumber.

[64] For the process of cutting lumber into smaller widths of lumber using Rip Saw #1, the worker places the piece of lumber length-wise against a guard rail and pushes the lumber toward the infeed opening of the machine. There is also a guide roller at the front of the infeed opening of the rip saw machine that keeps the piece of lumber flush against the guard rail as it moves forward through the infeed opening of the rip saw machine.

[65] At the infeed opening are two sets of anti-kickback teeth or fingers. One set would sit above the piece of lumber being fed into the infeed opening of Rip Saw #1 and one set would sit below the piece of lumber being fed in. The front end of the piece of lumber being fed into the machine comes into contact first with the lower set of anti-kickback teeth before it would come into contact with the upper set of anti-kickback teeth or fingers. The anti-kickback teeth act independently of each other and only rise in the upper set or drop in the lower set when the piece of lumber touches only those teeth that would be in the path of the width of the piece of lumber. In other words, only those particular teeth on the upper set or on the lower set of anti-kickback teeth would move when coming into contact with the piece of lumber as it is pulled into the rip saw machine by the machine's conveyor belt, which also has teeth. The anti-kickback teeth or fingers that are not in the path of the width of the piece of lumber would not rise for the upper set or drop for the lower set. These anti-kickback teeth or fingers keep in constant contact with the piece of lumber while in passes them and will return to their original position when the full length of the piece of lumber completely passes the first two sets of anti-kickback teeth or fingers. If the saw blades kick the piece of lumber backwards toward the infeed opening, then the anti-kickback teeth are designed to dig into the lumber to prevent the lumber from moving further backwards.

[66] After the front of the piece of lumber passes the first or lower set of anti-kickback teeth, the piece of lumber then comes into contact with a conveyor belt with teeth which pulls the piece of lumber towards the saw blades or blades if multiple cuts are to be made to the piece of lumber. But before the front part of the piece of lumber reaches the saw blade or blades inside the rip saw machine, after going through the first two sets of anti-kickback teeth or fingers at the infeed end of the machine, it has to next pass a splinter shield or guard that swivels up as the front of the piece of lumber touches the splinter guard or shield. The splinter shield or guard also keeps in constant contact with the top of the lumber as it passes. The splinter shield or guard prevents splinters or shard of wood from being kicked back out towards the infeed opening of the machine by the machine's saw blades.

[67] Then after the front of the piece of lumber passes or pushes the splinter guard or shield to rise up, it then goes under a pressure roller which keeps the lumber pressed against the conveyor belt with teeth. This pressure keeps the lumber pressed against the teeth of the conveyor belt which also makes the lumber keep moving forward towards the saw blade or blades and from moving backwards towards the infeed opening. Next, the front of the piece of lumber would touch another set of anti-kickback teeth or fingers, which are then pushed upwards by the lumber as it passes. This third set of anti-kickback teeth or fingers also keeps in constant contact with the top of the lumber as the piece of lumber moves forward. This third set of anti-kickback teeth or fingers are also designed to dig into the piece of lumber if the piece of lumber is kicked back by the saw blades, to prevent the piece of lumber from moving further backwards.

[68] After passing the third set of anti-kickback teeth, the front of the piece of lumber then passes underneath a second pressure roller and a filler board just before the front of the piece of lumber reaches the saw blade or blades.

[69] After the front of the lumber reaches the saw blade or blades the pieces of cut lumber continue forward until it reaches a third pressure roller that keeps the pieces of lumber pressed against the conveyor belt.

[70] Finally, the front of the pieces of cut lumber reaches a fourth set of anti-kickback teeth or fingers and pushes the anti-kickback teeth or fingers upwards as the pieces of cut lumber move forward. Again, this fourth set of anti-kickback teeth or fingers is in constant contact with the top of the pieces of cut lumber as it passes and is also designed to dig in if the cut pieces of lumber are kicked or pulled backwards by the machine's saw blades.

[71] Therefore, Rip Saw #1 has been designed and built with four sets of anti-kickback teeth or fingers, pressure rollers, and a toothed conveyor belt to prevent the piece of lumber being processed inside the machine from being kicked backwards out of the machine. It is also built with a shield or guard that prevents splinters from being sent backwards out of the infeed opening of the machine.

[72] In addition, after the eight foot long piece of lumber is nearly completely inside the rip saw machine and the worker, who feeds the lumber into the infeed opening of the machine, places another piece of lumber against the guard rail to be pushed into the machine, this second piece of lumber would also act as an additional guard or shield to block any splinters or the kickback of material from going further backwards.

[73] Furthermore, when the cover for the rip saw machine is removed or raised the saw blades inside the rip saw machine will not rotate.

[74] As well, there is an exhaust tube or duct that is attached to the top of Rip Saw #1, which is attached to a central vacuum or dust collecting system that vacuums out the sawdust and wood chips inside the machine. This central dust collection system collects all the saw dust and chips from all the rip saw machines.

(k) The Risks And Hazards In Operating Rip Saw #1 That Had Been Identified By The Manufacturer In The Operator's Manual

[75] At page 56, in subsection 6.1 of the operating manual for Rip Saw #1, which is for the 2007 model ProfiRip KM310 rip saw (see Exhibit #14), the manufacturer has set out and identified a list of "remaining" risks and hazards in the operation of the machine. These risks and hazards have been set out in a table under the heading "Trouble Shooting". In that table, in the column labelled "Fault", a safety risk in the operation of the rip saw has been particularized as "splinter or kick-backs", which the manufacturer indicates could be caused by the "Saws in poor condition", the "Exhaust too weak or clogged", "Gang ripping without pressure board", "Anti-kick-back fingers and splinter guards jammed (dirty, clogged with resin)", or "Individual anti-kick-back fingers working badly or not at all":

Fault	Cause	Remedy
Splinter or kick-backs	Saws in poor condition.	Sharpen or replace saw blades.
	Exhaust too weak or clogged	Check exhaust system and increase power, if required
	Gang ripping without pressure board	Use of pressure board.
	Anti-kick-back fingers and splinter guards jammed (dirty, clogged with resin).	Clean anti-kick-back fingers and splinter guards
	Individual anti-kick-back fingers working badly or not at all.	Inspect and replace, if necessary.

[76] But more important, the manufacturer also identified remedies to address the possible causes for splinters or kick-backs occurring that included sharpening or replacing saw blades that are in poor condition; checking the exhaust system on each rip saw and increasing its power if the exhaust is too weak or clogged; using a pressure board when gang ripping lumber; cleaning anti-kick-back fingers and splinter guards that are dirty or clogged with resin to prevent anti-kick-back fingers and splinter guards jamming; inspect and replacing individual anti-kick-back fingers that are working badly or not at all.

[77] In addition, at p. 2 of the 2007 Operating Manual (Exhibit #14) under the "General remarks" subheading that is under the section 2.0 heading of "Safety Instructions for Rip Saw", the manufacturer expressly states that the "operator should not remain immediately in front of the infeed opening of the machine", which is recognition by the manufacturer of the inherent risk or hazard to the operator of the machine from something being potentially kicked back out of the infeed opening of the machine:

To avoid accidents – whether caused by the machine or by the workpiece – wear gloves and protective footwear, hearing protectors, and a leather apron. Never modify the machine except as authorized by the manufacturer, and never use brute force when operating it. The operator should not remain immediately in front of the infeed opening of the machine. Depending on the job to be done, it may be useful to install a support table in front of the infeed opening.

[78] Also, at p. 3 of the 2007 Operating Manual, under the "Anti-kickback protection and splinter guards" subheading that is under the section 2.0 heading of "Safety Instructions for Rip Saw", the manufacturer expressly states that the anti-kickback teeth or fingers should be frequently checked to see that they are in good working order. And, that they should be swivelled "several times a day" and that any chips and sawdust present should be removed, since it can cause the fingers to jam. In addition, the manufacturer states that the interior of the machine should be cleaned from time to time as necessary so that chips and splinters do not accumulate:

It is forbidden to manually lift the anti-kickback fingers while the saw arbour is turning (except for the passage of the workpiece). Check the fingers frequently to see that they are in good working order. Swivel them several times a day and remove any chips and sawdust present – they can cause jamming of the fingers. The saw arbour must be at a COMPLETE STANDSTILL while this is done and there must be no workpiece in the machine. Clean the interior of the machine from time to time as necessary so that chips and splinters do not accumulate.

[79] Furthermore, at p. 3 of the 2007 Operating Manual under the "Tooling" subheading that is under the section 2.0 heading of "Safety Instructions for Rip Saw", the manufacturer also expressly states that the saw blades have to be resharpen in due time and cleaned with suitable agents to maintain their quality and to increase their operational safety, and that worn saw blades and pressure boards have to be replaced as necessary:

Carefully unwrap the tools and mount the saw blades and spacers on the arbour or the bushing, mount with utmost care and accuracy. Resharpen the saw blades in due time and clean them with suitable agents to maintain their quality and increase operational safety. Replace worn saw blades and pressure boards as necessary.

[80] But more significantly, at page 15 of the 2007 Operating Manual under the section 4.2 heading of "Orderly Application and Remaining Risk", the manufacturer expressly states that the orderly application of the machine includes "paying attention to the operator manual" as well and that "all safety rules have to be strictly observed". In addition, the manufacturer states that the machine has been designed according to the latest safety standards, but that there is, however, the risk of danger to "the operator or third persons, the machine, or other real values", and that the machine still has remaining risks, including the risk of "kicked back material or splinters" and the risks associated with defective anti-kickback fingers that are clogged, wrongly adjusted, rusty, or bent. However, the manufacturer states that these remaining risks can be avoided by following the safety instructions set out in the manual:

The machine is designed to cut wood and wooden material. Any other application is not considered to be orderly. Any damages resulting from non-orderly application are not at the manufacturer's responsibility. The risk has to be borne by the user. The orderly application includes paying attention to the operator manual as well. The machine has to be used by skilled and authorized personnel only. The blades have to correspond to the dimensions listed in the "Technical Specifications" and have to comply with European Norm EN 847-1. All safety rules have to be strictly observed.

The machine has been designed according to latest safety standards. There is, however, the risk to endanger the operator or third persons, the machine, or other real values.

Risks remain

• with unauthorized changes at the machine
• when operating the machine without its safety devices
• with inappropriate tools or tool fixation
• with kicked back material or splinters
• with defective anti-kick-back fingers (clogged, wrongly adjusted, rusty, bent)
• when solvents are released as the spray-unit reservoir is filled;
• due to dust, when the exhaust unit is not properly connected
• with adjustment works, e.g. pressure board adjustment and sawing into the pressure board
• with prohibited change of saw blade rotation direction
• with inappropriate operation of lasers
• due to gaps between machine and conveying units as described under see "Installation" on page 11.
• When ripping unedged material (board with wane), for safety reasons, the board must be fed in the saw with the wany side on top (sketch)
• It is absolutely inadmissible to feed stacked boards in the rip saw (see sketch)
• Conically shaped boards have to be fed in the saw with the narrow end first (see sketch)

All these remaining risks can be avoided by following the safety instructions.

[81] Moreover, at page 22 of the 2007 Operating Manual, in respect to the anti-kickback protection and splinter protections built in Rip Saw #1, under the section 4.10 heading of "Anti-kick-back Protection and Splinter Protection", the manufacturer expressly advises that the anti-kickback elements, which includes the grab type anti-kickback teeth or fingers, should not have too much lateral play, but that they must be loose enough to individually return in their original positions after the material is fed through. In addition, the manufacturer advises that the anti-kickback teeth or fingers have to be checked regularly for function and safety, and that the long anti-kickback elements in the diagram labelled as (1) and (2) are the most important ones, and that they have to be checked and cleaned very frequently:

The complete set of anti-kick-back protection consists of

• Grab type anti-kick-back fingers mounted at the pressure roller support, in front of the pressure roller support, in front of the first pressure roller (3)
• Splinter-protection row combined with linked rebound elements in front of the first pressure rollers (1) (2)
• And a splinter-protection row mounted in front of the transport chain at the infeed end (4)

The anti-kick-back elements must not have too much lateral play, but they must be loose enough to individually return in their original positions after the material throughfeed. They have to be checked regularly for function and thus safety. The long elements (1)(2) are the most important ones and have to be checked and cleaned very frequently.

[82] Also, in respect to the anti-kickback fingers and splinter guards, at page 24 of the 2007 Operating Manual under the subsection 5.1 heading of "Initial start-up", the manufacturer expressly states that the splinter guards and the anti-kickback obstacles are to be checked to see that they are free to move individually and that they swing back freely into their initial positions just above the surface of the feed chain when released:

• Check that the splinter guards and the anti-kickback obstacles are free to move individually and that they swing back freely into their initial positions just above the surface of the feed chain when released. The saw must be STOPPED during this inspection.

[83] And, in respect to the maintenance and cleaning of that particular model of rip saw machine, the manufacturer expressly states at page 59 of the 2007 Operating Manual under the section 7.0 heading of "Maintenance – Lubrication and under the subsection 7.1 heading "General Information", the machine had been designed so as to require little maintenance, but that nevertheless, it should be cleaned regularly and thoroughly in order to maintain its performance and ensure its trouble-free operation and that regular cleaning also helps to prevent defects and accidents:

• The machine is designed so as to require little maintenance. Nevertheless, it should be cleaned regularly and thoroughly in order to maintain its performance and ensure its trouble-free operation. Regular cleaning also helps to prevent defects and accidents.

[84] On the other hand, in respect to the positioning of the rip saw machine, at page 12 of the 2007 Operating Manual under the section 3.3 heading of "Installation", the manufacturer provides instructions and recommendations about where the rip saw machine can be positioned. However, the manufacturer did not give specific instructions on how a rip saw is to be positioned or located in relation to the position or location of other machines, other rip saw machines, in relation to workers or worker traffic, or in respect to what can be around the vicinity of the rip saw machine, except that there had to be "sufficient space for the workpiece at the discharge end of the machine in order to preclude the risk of injury to personnel." In addition, the manufacturer recommended that one of their technicians should perform the work of levelling the machine since their technician "can also provide the appropriate instruction to ensure that optimum performance will be obtained when the machine is put into operation.":

The machine can be set up on any even floor that will carry its weight, and does not need a special foundation.

Level the machine both longitudinally and transversally (see installation diagram) using a mason's level, with the saw arbor and top of the feed chain as planes of reference. The level-adjustment bolts are located next to the holes for the mounting bolts in the feet of the machine. We recommend having one of our technicians perform this work as he can also provide the appropriate instruction to ensure that optimum performance will be obtained when the machine is put into operation.

Ensure that there is sufficient space for the workpiece at the discharge end of the machine in order to preclude the risk of injury to personnel. …

Set the machine up in a dry place having at least a roof in order to avoid exposure to extreme temperatures. … Never install the machine where there is a risk of explosions (e.g. in a paint shop).

(l) The Layout Of The Rip Saw Machines In The Alpa Lumber Plant

[85] Daniel Sperduti, the operations manager for Alpa Lumber, also said that the way the rip saw machines were set up in a line at the Alpa Lumber plant with the infeed end of Rip Saw #1 facing the outfeed end of Rip Saw #2, had been very similar to the way the rip saw machines had been set up in the Bel Air Lumber factory when Bel Air Lumber had been the owner of those same rip saw machines that are now in the Alpa Lumber plant. Sperduti also explained that the rip saw machines in the Alpa Lumber plant were the same rip saw machines that had been owned by Bel Air Lumber and had been by Alpa Lumber from the Bel Air Lumber bankruptcy.

[86] In addition, the distance separating the infeed end of Rip Saw #1 and the outfeed end of Rip Saw #2 had been estimated by the workers, who testified at trial, to be a distance of about 20 to 24 feet. Furthermore, before the injury had occurred to Ma Phao on May 6, 2014, there had been no barrier, shield, or guard that had been placed or erected between the infeed end of Rip Saw #1 and the location where a worker would stand when collecting and sorting wood that comes out of the output end of Rip Saw #2.

[87] The guards and shields that the defendants rely on in their due diligence defence of taking all reasonable care to prevent a worker from being injured by material or product being processed by Rip Saw #1 are found inside Rip Saw #1 and are not in respect to any guards or shields outside of the machine which would prevent injury to a worker in the vicinity of the infeed opening of the machine, once any product or material is actually ejected out of the machine.

(m) Alpa Lumber's Cleaning And Maintenance Program For Preventing The Kickback Of Splinters and Wood In The Operation Of Their Rip Saw Machines

[88] As indicated in the table of "faults, causes, and remedies" at p. 56 of the 2007 Operating Manual for Rip Saw #1, the kickback of wood and splinters could be prevented by the regular cleaning and the use of sharp saw blades in the machine; the checking of the exhaust system and increasing its power when the exhaust system is too weak or clogged; the use of a pressure board when the gang ripping of lumber is required; the cleaning of anti-kickback teeth or fingers and splinter guards to prevent them jamming from the teeth or fingers being dirty or clogged with resin; and the inspection and swiveling of the anti-kickback teeth or fingers and splinter guard to ensure that individual anti-kickback teeth or fingers and the splinter guard are working properly and replacing them if they are nor working properly.

[89] Furthermore, one of Alpa Lumber's workers, Vonusoth Sichantha, had testified that he was responsible everyday to clean the rip saw machines at the Alpa Lumber plant four times a day and to check and replace the saw blades in all the machines. He also said he had cleaned the inside of the machine and had checked the saw blade of Rip Saw #1 on May 6, 2014, and that he had perform these tasks at the start of his shift at approximately 6:00 a.m. The shard of wood that had escaped from Rip Saw #1 had injured Ma Phao at approximately 8:00 a.m.

[90] It should also be noted that Vonusoth Sichantha is the brother of the defendant, Van Kham Sichantha, who has been charged for being the injured worker's supervisor that had failed to ensure that Rip Saw #1 had been shielded or guarded so that the product, material being processed, or waste stock would not endanger the safety of any worker.

[91] Vonusoth Sichantha also testified that he starts work at 6:00 a.m., and that before the other workers arrive for the start of the work day at 7:00 a.m., his job is to clean and set up all the rip saw machines, as well as checking and replacing the saw blades in the machines when it is necessary to do so. He also said he does this everyday.

[92] Furthermore, in outlining his routine, Vonusoth Sichantha said he cleans the inside and the outside of the rip saw machines daily by using a power blower. He also said he looks at the saw blades in the machines and blows everything. To clean the machines, he said he uses a device that blows air. In particular, he said he opens the rip saw machines and checks the blades really well to see that the blades are not burned, or whatever, and then blows out the rip saw machines. In addition, he said that if he sees a problem with the blades, he then has to change the blade and put on a new one. He also said he cleans everything nicely, including the chain, rollers, and guards. Furthermore, he said he also makes sure everything is moving well. He also said he blows the chain so there is no dust on the chain and cleans and blows everything out, as well as checking that the guard and rollers are moving well and keeps cleaning them to make sure. He then he said he starts the machine so that it turns really slow and then blows the outside of the rip saw machines, cleans up, and then he is done.

[93] Vonusoth Sichantha also said he then repeats the cleaning of the inside of the rip saw machines and the checking of the saw blades at the morning break held at 9:00 a.m. and then again at noon time. He also said that before Ma Phao had gotten hurt, Vonusoth Sichantha said he always cleaned Rip Saw #1 every day.

[94] Moreover, Vonusoth Sichantha said that depending on the customer's needs, between three to six rip saw machines are used at the plant.

[95] Vonusoth Sichantha also said he had cleaned Rip Saw #1 on the morning of May 6, 2014, and that he had cleaned all the rip saw machines on that day, as well as all the saws in the month of May of 2014.

[96] In addition, Charles Charron, said that for a wood-working place, the Alpa Lumber plant was a clean workplace.

[97] Furthermore, Daniel Sperduti, the Alpa Lumber operations manager, testified that the plan to prevent any worker from being injured by splinters or kick-backs, included training the worker, who fed the lumber into the rip saw, to stand to the side, and assigning and designating a worker to clean and blow out the dust and wood chips from the inside of the rip saw machines three times a day and to also inspect the rip saw machines three times a day, and to replace dull or poor saw blades when it was necessary to do so.

[98] However, there has been no evidence adduced by the defendants about a system that had been established for someone to regularly check and to swivel the anti-kickback teeth or fingers individually and splinter guards in the rip saw machines to determine if they were working badly or not at all, and for someone to record these regular checkups for the adequacy and functioning of the anti-kickback teeth or fingers and splinter guards in the individual rip saw machines at the plant.

[99] And, because Charles Charron, the professional engineer, had testified in particular that he had observed a broken anti-kickback finger on the output side of the saw blades during his inspection conducted on Rip Saw #1, and because the 2007 Operating Manual for Rip Saw #1 had required someone to swivel the anti-kickback teeth or fingers and the splinter guards in the rip saw machines several times a day to ensure that they were not working badly or not at all, then taking all reasonable steps required that Alpa Lumber assign someone to check and swivel the anti-kickback teeth or fingers and the splinter guards in the rip saw machines several times a day to ensure that the risk of the kickback of splinters and fragments of wood would not be caused by missing, broken, faulty, or improperly functioning anti-kickback teeth or fingers or splinter guards.

(n) The Presence Of The Proper Operating Manual For Rip Saw #1 At The Alpa Lumber Plant

[100] Rip Saw #1 had been a rip saw with model name of ProfilRip model KM 310. Rip Saw #1 had been manufactured in 2007.

[101] Charles Charron testified that Alpa Lumber had provided him an Operating Manual and that it had been for the same type of model as Rip Saw #1, but for an earlier model that would have been manufactured in 2005, but not for the specific model year for Rip Saw #1, which had been manufactured in 2007. Charron then said that he had to get the 2007 Operating Manual from the manufacturer for the 2007 model.

[102] In addition, Daniel Sperduti, the operations manager and management member on the Health and safety Committee for the Alpa Lumber plant said that the Operating Manual for Rip Saw #1 had been in the plant and that workers had access to the manual. However, as revealed by Charles Charron, the Operating manual in the plant had been for the 2005 model of Rip Saw #1 and not the Operating Manual for the 2007 model that would be for Rip Saw #1. Furthermore, the evidence does not clearly indicate that the two Operating Manuals had been identical or that there had been no changes in the 2007 manual from the 2005 manual.

[103] Furthermore, there is no evidence that Daniel Sperduti, the operations manager and the person at Alpa Lumber responsible for the health and safety at the plant had even read the 2005 Operating Manual for the rip saw machines before the accident. Moreover, he could not have read the proper manual for Rip Saw #1, since the 2007 Operating Manual was not even in the plant before the injury to Ma Phao had occurred on May 6, 2014.

[104] In sum, there is no evidence that any of the workers, supervisors, or managers at the Alpa Lumber plant had ever read or been acquainted with the contents of the Operating Manual for the rip saw machines at the plant.

(o) Training Given To Alpa Lumber Workers Who Feed Lumber Into The Rip Saw Machines Or To Workers Working In The Vicinity Of The Infeed Opening Of The Rip Saw Machines

[105] Anthony Coulter and Manulido Gonzales, and the Alpa Lumber operations manager, Daniel Sperduti, had all similarly testified that they had been trained to stand or step to the side of the lumber for safety while they were feeding lumber into the infeed opening of a rip saw machine, in case the lumber kicks back. Anthony Coulter said that his supervisor, Van Kham Sichantha, had told him to do that.

[106] In addition, Daniel Sperduti testified that he had worked as an operator on Rip Saw #1 when the rip saw machines were owned by Bel Air Lumber and that he had been trained to stand to the side when feeding in lumber into the rip saw and that standing to the side was only to prevent the wood from being kicked back and hitting and bruising the worker's hand.

[107] However, Daniel Sperduti's opinion that the purpose of standing to the side of the lumber being fed into the infeed opening of a rip saw machine is only for avoiding lumber that could be kicked back from bruising the hand of the worker is not logical or consistent with what the manufacturer had cautioned about in the 2007 Operating Manual, and had appeared to be evidence that would downplay the significance or consequences of the hazard or risk associated with of material or splinters being kicked back through the infeed opening of Rip Saw #1.

[108] First, if the only safety concern was with a bruised hand on the worker who feeds the lumber into the rip saw machine, then training the worker who feeds the lumber into the machine to pull the hand away from the end of the lumber being fed in could also accomplish the risk of a bruised hand. Second, there is no evidence that Daniel Sperduti had ever read the 2007 Operating Manual for Rip Saw #1 or the 2005 Operating Manual that had been present in the plant, or that he had acquainted himself with the list of risks and hazards in the operation of Rip Saw #1 outlined by the manufacturer and the remedies for operating the machine properly and safely in the Operating Manual for Rip Saw #1. If he did, he would have been aware of the manufacturer's required safety precautions in the 2007 Operating Manual, which included at p. 2 that the "operator should not remain immediately in front of the infeed opening of the machine"; and at p. 15 that there is a risk of danger to "the operator or third persons, the machine, or other real values", and the remaining risk "with kicked back material and splinters". As such, the hazards associated with operating Rip Saw #1 involved more than the risk of a bruised hand to the worker who feeds in lumber into the machine from the kickback of lumber, but also included the risk to operators, third persons, to the machine itself, and to other real values from material or splinters being kicked back out of the infeed opening of Rip Saw #1.

[109] As well, there was no evidence of any specific safety training or precautions given by Alpa Lumber, as employer, or by Van Kham Sichantha, as supervisor, to the Alpa Lumber workers, who were not feeding lumber into a rip saw machine, but who were still working in the proximity of the infeed opening of a rip saw machine.

(p) Were The Manufacturer's Safety Instructions And Remedial Actions For The Causes Of The Risks And Hazards Set Out Expressly In The Operating Manual For Rip Saw #1 Complied With By The Defendants?

[110] Although the standard of care required of both defendants in the circumstances is not one of perfection, even the 2007 Operating Manual for Rip Saw #1 indicated that reading the Operating Manual and being aware of the machine's risks and hazards and their remedies in the operation of Rip Saw #1 had been one of the manufacturer's required precautions that had to be taken for the safe and proper operation of Rip Saw #1.

[111] First of all, the Operating Manual for the actual model of Rip Saw #1, which had been manufactured in 2007, was not even in the plant before the injury to Ma Phao had occurred on May 6, 2014, and that it was only after Charles Charron had been retained by Alpa Lumber to assess and review Rip Saw #1 that the proper Operating Manual for Rip Saw #1 had been obtained from the manufacturer of Rip Saw #1. Furthermore, the Operating Manual that Alpa Lumber did have in the plant before the injury to Ma Phao had occurred had been for the same type of model of rip saw machine that Rip Saw #1 was, but the manual had been for the same model that had been manufactured in 2005 and not for the particular model manufactured in 2007.

[112] And, even though the Operating Manual for the 2005 model of rip saw machine may be identical to the contents of the 2007 Operating Manual for Rip Saw #1, Alpa Lumber should have made sure that the 2007 Operating Manual had been in the plant and that all managers, supervisors, and workers been made aware of the contents of the 2007 Operating Manual, as well as being made aware of the machine's risks and hazards and their remedies in the operation of Rip Saw #1, as well as the preventative precautions for the safe and proper operation of Rip Saw #1.

[113] Furthermore, even if the 2005 Operating Manual and the 2007 Operating Manual were identical, there is no evidence that any manager of Alpa Lumber, or that the operations manager for Alpa Lumber, Daniel Sperduti, or the supervisor of the workers, Van Kham Sichantha, or any Alpa Lumber worker had even read either of the 2005 or 2007 Operating Manuals for the rip saw machines or knew or been acquainted with the manufacturer's list of safety risks or hazards associated with splinters and kick-back of material and the operation of the rip saw that had been identified by the manufacturer and the remedies that had been set out by the manufacturer.

[114] Also, at p. 15 of the 2007 Operating Manual, the manufacturer had expressly stated that the orderly application of the machine includes "paying attention to the operator manual" as well and that "all safety rules have to be strictly observed". One such safety rule was set out at p. 2 of the 2007 Operating Manual that the "operator should not remain immediately in front of the infeed opening of the machine".

[115] Furthermore, the 2007 Operating Manual said the operation of the rip saw machines when in operation were potentially hazardous to not only the machine's operator but also to third persons, and to other real values, which could be interpreted to mean other things, and that there was a danger from splinters and the kickback of material.

[116] Moreover, even if no one had ever observed a splinter or a stake of wood being ejected back through the infeed opening of a rip saw machine at the plant, it would not mean that it would not be a foreseeable risk or hazard or that such an event could not happen. The manufacturer itself had indicated in the 2007 Operating Manual that there are risks of splinters and kick-backs, that there is a hazard to operators, third persons, and to property, and that operators should not stand immediately in front of the infeed opening of the rip saw machine, and that splinters and kickbacks could be caused by several causes that included "Saws in poor condition", the "Exhaust too weak or clogged", "Gang ripping without pressure board", "Anti-kick-back fingers and splinter guards jammed (dirty, clogged with resin)", or "Individual anti-kick-back fingers working badly or not at all".

[117] Furthermore, a reasonable person after reading the manufacturer's 2007 Operating Manual would have known or ought to have known about the risks or hazards of splinters and kickback of material, the risk of splinters or material being kicked back to operators, third persons, or to other property, and that operators and third persons should not stand in front of the infeed opening. Ma Phao had been standing virtually in front of the infeed opening of Rip Saw #1 about 10 feet from the infeed opening when he had been injured by the stake of wood ejected from the infeed opening of Rip Saw #1.

[118] Although Vonusoth Sichantha has said that he cleans Rip Saw #1 everyday by blowing the inside and outside of the rip saw machines of dust and checks the saw blades and replaces them if necessary, as well as checking the guards and seeing that everything had been moving properly, he did not state that he regularly checks and swivels the anti-kickback teeth or fingers several times a day to make sure they were working properly or that he checks for broken or improperly working anti-kickback teeth or fingers.

[119] Moreover, Charles Charron said that on his Pre-Start Health and Safety Review of Rip Saw #1, he found a broken anti-kickback tooth or finger and that one the anti-kickback fingers on the output side would stick and not fall back into the down position unless he touched the adjacent anti-kickback finger, but had opined that the vibration from the rip saw machine operating would likely cause the anti-kickback finger to fall back down from its stuck position.

[120] Ergo, there is no specific evidence that the manufacturer's safety instructions in respect to the anti-kickback teeth or fingers expressly stated on p. 22 of the operating manual had been complied with. That is, there is no evidence that the anti-kickback teeth or fingers of Rip Saw #1 had been regularly checked or swiveled by anyone at the Alpa Lumber plant several times a day to see that they did not have too much lateral play, and that they had to be loose enough to individually return in their original positions after the material is fed through and that they had to be checked regularly for function and safety and that the long anti-kickback elements in the diagram labelled as (1) and (2) are the most important ones, and that they had to be checked and cleaned frequently. In addition, the manufacturer had instructed in p. 3 of the 2007 Operating Manual, that for the good working order of the anti-kickback teeth or fingers someone had to "Swivel them several times a day and remove any chips and sawdust present" as chips and sawdust "can cause jamming of the fingers."

(q) Had A Shard Or Piece Of Wood Been Similarly Ejected From Rip Saw #1 Or From The Other Rip Saw Machines At The Alpa Lumber Plant Before Ma Phao Had Been Injured On May 6, 2014?

[121] Ma Phao, the injured worker, said he had heard about a piece of wood being ejected from a rip saw machine before, but did not elaborate on the details of that prior occasion. However, he also said that he did not personally see a piece of wood ever being shot out of a rip saw machine.

[122] Also, none of the other workers who had testified at trial had testified to ever observing a shard or piece of wood being ejected from a rip saw machine during the time they had worked at Alpa Lumber.

[123] Ergo, no weight can be placed on Ma Phao's testimony about hearing that such an event had occurred before, nor would his comment have any probative value.

(r) What Had Caused A Stake Of Wood To Be Ejected From Rip Saw #1 On May 6, 2014?

[124] Although not critical to the resolution of this case, no one had been able to testify as to what had caused a stake of wood to be ejected from Rip Saw #1, considering the anti-kickback elements and splinter protection built and designed into Rip Saw #1. Even professional engineer Charles Charron, who had been qualified as an expert witness on pre-start health and safety reviews of machines, had testified to being stumped on how the stake of wood could have been ejected from the machine.

[125] However, Charron in his examination of Rip Saw #1 had noted that one of the anti-kickback teeth had stuck and that it had only returned to its original position after the adjacent anti-kickback tooth had been touched by his hand, but opined that the vibration of the rip saw in operation should be forceful enough to cause any anti-kickback teeth that became stuck to go back to its original position.

[126] But more significantly, Charron had testified that he had observed one of the anti-kickback teeth or fingers on the output side of Rip Saw #1 had been broken and needed to be replaced. He then instructed Alpa Lumber to replace the broken anti-kickback tooth or finger and to also fix some other defects he had observed on Rip Saw #1 that were not directly related to causing a stake of wood to be ejected from the machine. After his recommended remedial fixes were completed on Rip Saw #1, Charron in his written report (Exhibit #15) concluded that the operation of Rip Saw #1 was not likely to endanger the safety of any worker.

(s) Post-Accident Measures Or Solutions: A Barrier Made Up Of A Plywood-Like Board Was Put Up Between Rip Saw #1 And Rip Saw #2 After The Accident To Make The Workplace Safer

[127] After the incident that had injured Ma Phao's arm, a large piece of plywood-like board had been placed between the infeed end of Rip Saw #1 and the output end of Rip Saw #2.

[128] However, the defendants submit that the installation of this large piece of plywood-like board between Rip Saw #1 and Rip Saw #2 would not prevent a worker feeding lumber into the infeed opening of Rip Saw #1 or any worker standing between the infeed end of Rip Saw #1 and the large piece of plywood-like board from being struck with a piece of wood escaping from Rip Saw #1.

[129] In R. v. Pioneer Construction Inc., Gordon J. held at paras. 12, 16, and 17, that due diligence is assessed by considering the accused's position prior to and during the accident and that evidence of remedial action or measures implemented by an accused after the accident is not admissible as evidence for the purposes of determining "due diligence":

"Due diligence" can only be appropriately and objectively viewed by taking into account the Appellant's position immediately prior to the accident. Evidence of what was done following the event by itself is equivocal at best and prejudicial at worst.

If this is applied to our facts and prosecution, the remedial application of guards is very probative of the fact the Appellant was in control of all aspects of the machine its operation and its supervision and was therefore the perpetrator if there was a contravention. But its value in determination of "due diligence" is very small because such actions taken by themselves may be equally consistent with not taking prior precaution as with the incident not being reasonably foreseeable but in hindsight, having seen this incident occur, having been undertaken to prevent reoccurrence.

This is primarily a recognition that the evidence is relevant but that the principles regarding circumstantial evidence apply. If the fact that remedial action was taken is relevant, however, witnesses may be examined thereon and if a witness for a defendant gives evidence confirming foreseeability which makes the remedial action capable of an inference negating "due diligence", such could be capable of consideration.

[130] The prosecution also submits that it is not relying on the post-accident solution by the defendants, which had been the barrier put up between Rip Saw #1 and Rip Saw #2 after the occurrence of the accident, as evidence of liability or that it had been reasonable to put that barrier up as a guard or shield to prevent a worker from being injured. Furthermore, the prosecution does not rely on this post-accident measure of a large piece of plywood-like board being placed between Rip Saw #1 and Rip Saw #2 as evidence of the lack of due diligence on the part of the corporate defendant Alpa Lumber, or the supervisor Van Kham Sichantha.

4. ANALYSIS

(A) HAS THE CROWN PROVEN BEYOND A REASONABLE DOUBT THAT THE DEFENDANTS HAVE RESPECTIVELY COMMITTED THE ACTUS REUS OF THE OFFENCE BY FAILING TO ENSURE THAT THE MEASURES AND PROCEDURES PRESCRIBED IN S. 26 OF O. REG. 851/90 ARE CARRIED OUT IN THE WORKPLACE?

[131] Both defendants have been charged with failing to ensure that the statutory measures and procedures prescribed by s. 26 of the Industrial Establishments Regulation, R.R.O. 1990, Reg. 851, had been complied with on May 6, 2014, at the workplace located at 13130 Dufferin Street in King City, Ontario. Section 26 requires that Alpa Lumber, as an employer, and Van Kham Sichantha, as a supervisor, ensure that Rip Saw #1 had been shielded or guarded so that the product or material being processed, or waste stock, would not endanger the safety of any worker:

26. A machine shall be shielded or guarded so that the product, material being processed or waste stock will not endanger the safety of any worker.

[132] To start with, the prosecution has proven beyond a reasonable doubt that the corporate defendant, Alpa Lumber Mills Inc., operating as Alpa Lumber Mills, was the employer of the injured worker, Ma Phao, on May 6, 2014. They have also proven beyond a reasonable doubt that the defendant, Van Kham Sichantha had also been the supervisor of the injured worker, Ma Phao, on May 6, 2014. In addition, the prosecution has proven beyond a reasonable doubt that the plant located at 13130 Dufferin Street in King City, Ontario is a workplace and that Ma Phao had been employed by Alpa Lumber Mills Inc. and that Ma Phao had been working at the plant on May 6, 2014, when he was injured by a stake of wood that had been ejected out of a rip saw machine referred to as Rip Saw #1.

[133] Furthermore, if the prosecution proves beyond a reasonable doubt that the corporate defendant, Alpa Lumber Mills Inc., as an employer had failed to ensure that Rip Saw #1 had been shielded or guarded so that the product or material being processed or waste stock would not endanger the safety of any worker, then Alpa Lumber Mills Inc. will have committed an offence under s. 25(1)(c) of the OHSA. Section 25(1)(c) establishes the legal duty of an employer to ensure that the measures and procedures prescribed are carried out in the workplace:

25(1) An employer shall ensure that,

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

[134] Furthermore, if the prosecution also proves beyond a reasonable doubt that the defendant, Van Kham Sichantha, as a supervisor, had failed to ensure that Rip Saw #1 had been shielded or guarded so that the product or material being processed or waste stock would not endanger the safety of any worker, then Van Kham Sichantha will have committed an offence under s. 27(1)(a) of the OHSA. Section 27(1)(a) of the OHSA requires that a supervisor ensure that a worker works in the manner and with the protective devices, measures and procedures required by this Act and the regulations:

Duties of supervisor

27(1) A supervisor shall ensure that a worker,

(a) works in the manner and with the protective devices, measures and procedures required by this Act and the regulations; and

(b) uses or wears the equipment, protective devices or clothing that the worker's employer requires to be used or worn.

Additional duties of supervisor

(2) Without limiting the duty imposed by subsection (1), a supervisor shall,

(a) advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware;

(b) where so prescribed, provide a worker with written instructions as to the measures and procedures to be taken for protection of the worker; and

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

[135] Furthermore, the two offences set out respectively in ss. 25(1)(c) and 27(1)(a) of the OHSA in respect to the guarding or shielding of machines under s. 26 of O. Reg. 851/90 are strict liability offences. Therefore, in determining whether the defendants are guilty respectively of committing the two offences beyond a reasonable doubt, a two stage analysis is required. For the first stage, the Crown has the onus to prove beyond a reasonable doubt that both defendants had committed the actus reus of the offences set out in count #1 and count #2, respectively. If the Crown meets its legal burden, then to avoid being convicted of committing the two offences the onus shifts to the defendants to prove on a balance of probabilities that they had respectively taken all reasonable steps in the circumstances to avoid the particular event or that they respectively had reasonably believed in a mistaken set of facts, if true, would render their respective acts or omissions innocent: R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.).

[136] The prosecution has met its burden in proving beyond a reasonable doubt that Ma Phao, a worker, had been injured in a workplace located at 13130 Dufferin Street in King City, Ontario, by a stake of wood that had entered his left arm after it had been ejected out of Rip Saw #1 on May 6, 2014, at approximately 8:00 a.m. Moreover, the prosecution has proven beyond a reasonable doubt that there had been no barrier, shield, or guard between the infeed opening of Rip Saw #1 and the location of where Ma Phao had been standing when he had been sorting wood at the output end of Rip Saw #2 and injured by the stake of wood that had been ejected from the machine.

[137] Ergo, the Crown has proven beyond a reasonable doubt that the corporate defendant, Alpa Lumber Mills Inc., as employer, and the defendant, Van Kham Sichantha, as supervisor, had respectively committed the actus reus of the offences set out in s. 25(1)(c) and s. 27(1)(a) of OHSA by failing to ensure that Rip Saw #1 had been shielded or guarded so that the product, material being processed, or waste stock would not endanger the safety of any worker, which is a measure or procedure prescribed by s. 26 of O. Reg. 851/90 to be carried out at a workplace.

(B) HAVE THE DEFENDANTS RESPECTIVELY PROVEN THE DUE DILIGENCE DEFENCE ON BALANCE OF PROBABILITIES?

[138] For their due diligence defence, both defendants submit that both branches of the due diligence defence apply to the circumstances. In addition, they submit that they have both proven on a balance of probabilities that they had respectively taken all reasonable care in the circumstances to ensure that Rip Saw #1 had been guarded or shielded so that the product, material being processed, or waste stock would not endanger the safety of any worker, which is a measure or procedure prescribed by s. 26 of O. Reg. 851/90 to be carried out at a workplace. For their defence of taking all reasonable care in the circumstances, both defendants respectively rely on the guards and shield already built into Rip Saw #1 that would prevent splinters and material from being kicked back out of the infeed opening of the machine; the training they have provided to workers who feed lumber into the machine of standing to the side of the lumber; and the system that they implemented of having a designated worker cleaning the rip saw machines of accumulated saw dust and wood chips and checking and replacing the machine's saw blades four times every day, which are according to the manufacturer's safety precautions and instructions for preventing any harm to any worker from any product, material being processed, or waste stock.

[139] Alternatively, both defendants also contend that they have respectively proven on a balance of probabilities that they had reasonably, but mistakenly, believed that the guards and shields in Rip Saw #1 would have or should have prevented the stake of wood from escaping from the infeed opening of Rip Saw #1.

[140] As such, both defendants submit that they should be acquitted of committing their respective charges.

(1) The Required Level Of Reasonable Care

[141] In considering the defence of due diligence, Fitzpatrick J. had held in R. v. Courtaulds Fibres Canada (1992), 76 C.C.C. (3d) 68 (Ont. Prov. Div.), that reasonable care and due diligence in assessing an accused's efforts in preventing the prohibited act from occurring does not mean superhuman efforts, but means a high standard of awareness and actions that are decisive, prompt, and continuing:

Reasonable care and due diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt, and continuing action. To demand more, would, in my view, move a strict liability offence dangerously close to one of absolute liability.

[142] Similarly, in R. v. Blair, [1993] O.J. No. 1477 (Ont. Ct. (Prov. Div.)), Harris J., in considering the standard of care required for exercising due diligence, held at para. 169, that it must not be characterized as being unrealistic, superhuman or beyond that which is reasonable:

It should be recognized from the outset that the standard of care must not be characterized as being unrealistic, superhuman, or beyond that which is reasonable. If that was the case, the offence would be converted to one of absolute liability, because that type of onus could never be discharged. On the other hand the onus should not be characterized as being flimsy, elusive, a figment of imagination, or something made of compromise.

[143] Also, as this court emphasized in R. v. Modern Niagara Toronto Inc., [2003] O.J. No. 3332 (O.C.J.), at para. 137, there is no expectation that an employer be superhuman or to perform their duties to perfection, and that an employer's failure to comply with the O.H.S.A. has to be considered on the basis of their prudence and reasonableness for the circumstances:

Although, the O.H.S.A. is concerned about the protection and safety of workers in the workplace, there is no expectation that an employer be superhuman or to perform their duties to perfection. An employer's failure to comply with the Act has to be considered on the basis of their prudence and reasonableness for the circumstances. Even though the O.H.S.A. requires the employer to protect a worker's safety while on the job, it does allow for alternative measures to any statutory procedure, as well as a statutory defence of taking every precaution reasonable for the circumstances.

[144] Moreover, in his dissertation, "Beyond R. v. Sault Ste. Marie: The Creation and Expansion of Strict Liability and the `Due Diligence' Defence", (1992) 30 Alta. L. Rev. (No. 4) 1233, under section C, "Due Diligence: Defined", N.J. Strantz also commented on the standard of care that should be exercisable by employers to establish due diligence and the two-step test that employers must meet to set up the defence of due diligence. For the applicable standard of care to be exercised by the employer to establish the due diligence defence, Stranz indicated that it would depend on the facts of each case and the particular industry or activity involved, and that the greater the likelihood of harm and the greater the awareness of the potential danger, the more due diligence an employer must exercise in order to escape liability. And, in order to establish the due diligence defence, the employer must first show that the act took place without the employer's direction or approval, and second, that the employer exercised all reasonable care by establishing a proper system to prevent the commission of the offence as well as taking reasonable steps to ensure the effective operation of the system:

What constitutes "due diligence" is case specific, and the standard of care required to establish the defence depends on the facts of each case, and the particular industry or activity involved. Basically, the greater the likelihood of harm, and the greater the awareness of the potential danger, the more "due diligence" an accused must exercise in order to escape liability. Thus, only the outer limits of the defence can be stated with any certainty. For example, it is clear that the standard of diligence required for the defence to be operative will fall "short of risking life and limb" and "where an accused chooses in a moment of crisis to deposit a relatively small quantity of a deleterious substance, rather than risk a man's life, he has acted as a reasonable man would have done in similar circumstances and will not be held liable."

Actions amounting to "due diligence" may change with time; what might amount to an appropriate solution at one juncture might not meet "due diligence" standards at a future point in time. Thus, "due diligence" includes keeping abreast of technological change and ensuring equipment is not only in good operating condition, but also meets current specifications and standards.

"Due diligence" as a defence to direct liability of an employer has been stated as simply taking "every precaution which is reasonable" in the circumstances to "follow the rules". In some circumstances, "due diligence" may mean retaining consultants or experts when the appropriate level of expertise is lacking internally.

To set up a "due diligence" defence to vicarious liability as an employer, the employer must meet a two-part test. The employer must show "the act took place without the accused's direction or approval, thus negating wilful involvement of the accused, and ... the accused exercised all reasonable care by establishing a proper system to prevent the commission of the offence and ... [took] reasonable steps to ensure the effective operation of the system."

The Court stated that, because employees were not "infallible people," if the potential consequences are serious it might not be enough "if one does nothing but hire careful people train them carefully and tell them not to [do certain acts]," and that the corporate employer might have to "make adequate provisions in its systems or otherwise" to prevent the damage that may occur "when employees are not as careful as they are told to be." "Due diligence" also requires "adequate information and instructions from the company right down to the man on the job."

[145] In addition, Megginson J. in R. v. Cancoil Thermal Corp. (1988), 1 C.O.H.S.C. 169 (Ont. Prov. Ct.), at p. 186, held that it is the employer's specific reasonable care or non-negligence in relation to the statutorily-defined actus reus of the particular offence is what is determinative and not a general state of reasonable care or non-negligence:

In the case of the second branch or aspect, it is not "reasonable care" or "non-negligence" at large in the overall prevailing situation that exonerates, but rather "reasonable care" or "non-negligence" specifically relational to the statutorily-defined actus reus (be it commission or omission) of the particular offence charged.

[146] Moreover, in determining the standard of care required of accused persons in the business activity involved, Stuart C.J. in R. v. Gonder (1981), 62 C.C.C. (2d) 326 (Y.T.C.), at p. 331, found that the approach consisted of two stages: (1) whether there exists any general standard of care common to the business activity and (2) whether there are special circumstances which require a different level of care:

The approach consists of two stages. First, the existence of any general standard of care common to the business activity in question must be determined. Is there a standard practice of care commonly acknowledged as a reasonable level of care and did the accused act in accord with that standard? The second stage examines any special circumstances of the case which might require a different level of care other than the level suggested by the standard practice. Evidence of a standard practice is only one important component of that test, the ultimate test is the degree of due diligence required in the circumstances of each case.

[147] Furthermore, at pp. 332-333 of R. v. Gondor, Stuart C.J. held that reasonable care implies a scale of caring related to the special circumstances of each case, and that this standard of care is variable, raised or lowered according to the special circumstances of each factual setting. He also held that the degree of care is primarily governed by the following circumstances: gravity of potential harm, alternatives available to the accused, likelihood of harm, degree of knowledge or skill expected of the accused, and the extent that the underlying causes of the offence are beyond the control of the accused:

Reasonable care implies a scale 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.

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

[148] And, further at p. 333 of his decision, Stuart C.J. indicated that the reasonableness of care is best measured by comparing what was done against what could have been done:

Alternatives available to the accused - Reasonableness of care is often best measured by comparing what was done against what could have been done. The reasonableness of alternatives the accused knew or ought to have known were available is a primary measure of due diligence. To successfully plead the defence of reasonable care the accused must establish on a balance of probabilities there were no feasible alternatives that might have avoided or minimized injury to others.

[149] Furthermore, in R. v. Stelco Incorporated (1989), 1 C.O.H.S.C. 76 (Ont. Prov. Div.), at p. 87, Bennett J. held that in order to establish due diligence an employer must also establish that the supervisor or the person in charge had been doing what they were supposed to be doing:

I must agree with the Crown that the obligation of the constructor is much more than to simply create a system to inform employers concerning their responsibilities under the Act; it must take the next reasonable step and ensure the effective operation of the system through its supervisors. Due diligence must in addition to a good system, establish that a person in charge is doing what he is supposed to do.

[150] In addition, in R. v. Sault Ste. Marie (City) Public Utilities Commission, [1989] O.J. No. 2622, 3 C.O.H.S.C. 1 (Ont. Prov. Ct. (Crim. Div.)) at p. 5 of 3 C.O.H.S.C. 1, Greco J. held that one important factor in determining the degree of diligence required of any employer would relate to how much injury or damage would result in the event that some error is made or might be made, and that an employer must take reasonable precautions to guard against harm which is foreseeable or which might be expected:

In this regard then, one important factor to be taken into account in determining the degree of diligence required would relate to how much injury or damage would result in the event that some error is made or might be made. It is put by myself that the greater the risk; the greater for potential harm; the greater the care required.

I should not be taken as saying, however, that the accused should be able to foresee the future; that he should be a seer; that he should perhaps be required to guard against that which is unexpected, unknown or beyond any expectation. No. But, he must take precautions which are adequate to guard against that which is foreseeable, that which might be expected.

[151] Greco J., also commented at the end of his judgment, in R. v. Sault Ste. Marie (City) Public Utilities Commission that where the type of accident involves human intervention or error, then those circumstances may require that someone be faulted or held responsible for it occurring:

I wish to make this observation as well. There are events which occur without human fault or intervention -- accidents, pure accidents. There are other events which occur, you may call them accidents as well if you will, which would not have happened if human intervention or error had not been involved. Surely, no one should be faulted or held responsible in the first type of situation alluded to by myself, however, in the case of the second situation the opposite conclusion may often have to be reached.

[152] In addition, in R. v. Canada Brick Ltd., [2005] O.J. No. 2978 (S.C.J.O.), Hill J. recognized, at paras. 128 to 129, that the provincial regulatory scheme set out in the OHSA prescribes certain measures, for example relating to machine guarding designed to eliminate or minimize the potential for harm and to define the standard of care to be met by an employer:

An employer is not legally bound to provide the safest imaginable workplace. While it may strive to do so, what the Act requires is compliance with those regulations which shape a reasonably healthy and safe work environment. Certain minimally prescribed standards seek to prevent accidents on account of worker inadvertence. The employer owns and controls the workplace and is statutorily obligated to maintain the minimally reasonable level of safety described in the regulations. It is recognized that "where the hazard in question is caused by equipment that the employer has a special knowledge and control over, it is appropriate that the employer bear the burden of proving a defence": R. v. Timminco Ltd., at p. 529. Also at page 529, the court stated:

As a policy consideration, where the hazard in question is caused by equipment that the employer has a special knowledge and control over, it is appropriate that the employer bear the burden of proving a defence. On this subject, Dodge J. in R. v. Lake Ontario Cement Ltd. (1990), 5 C.O.H.S.C. 192 (Ont. Ct. (Prov. Div.)), aptly stated at p. 195:

In this case the employer controls the machine in question; he establishes and he controls the manufacturing process in the plant and he directs and supervises the employee in his duties. The very nature of the machine, how it works and the risks it poses to the worker are all matters within the employer's special pool of knowledge. Consequently, the employer and those he engages to supervise the worker have a special responsibility for his safety that is recognized and defined in the Occupational Health and Safety Act.

Generally, with a regulatory offence, it falls to the prosecution only to prove beyond a reasonable doubt a defendant's commission of the prohibited act. Negligence is assumed without the necessity of further proof by the Crown. It is open to the defendant to avoid liability by establishing, on a balance of probabilities, that a defence of due care is available - that no negligence exists because the defendant took, not some, but all due care, all reasonable steps in the circumstances, to avoid or prevent the occurrence of the prohibited act: R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 40 C.C.C. (2d) 353 (S.C.C.), at pp. 373-4, 377; R. v. Rio Algom Ltd., at pp. 249, 252; R. v. Kurtzman (1991), 4 O.R. (3d) 417 (C.A.), at p. 428. In R. v. Sault Ste. Marie, at p. 374, the court described both this "all reasonable steps" route to avoidance of liability as well as the reasonable mistake of fact situation:

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. These offences may properly be called offences of strict liability.

[153] Therefore, in determining whether either of the defendants in the case at bar have respectively proven on a balance of probabilities that they had taken all reasonable care in the circumstances to prevent the event from occurring, consideration will be taken of the particular industry; the type of workers; the nature and number of the workers' tasks and activities that were involved in respect to the accident; the knowledge, competence, and experience of those workers; the efforts of both defendants in dealing with the potential risk of harm to the workers working in the vicinity of Rip Saw #1; and the probability of recurrence and the potential for grave injury to a worker working in the vicinity of Rip Saw #1.

[154] For the present case, the processing of material at Rip Saw #1 encompasses the cutting of 8 foot long pieces of lumber into smaller widths of lumber through the use of an enclosed machine with built-in guards and shields to prevent the kickback of splinters and material and where there are only openings in the machine on the infeed end and outfeed end of the machine. Moreover, when Rip Saw #1 is operating there would be three or four workers that could be in the vicinity of the infeed end of Rip Saw #1.

(2) Due Diligence: Risk Analysis And Risk Management

[155] In their textbook, Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario: Canada Law Book Inc., 2007 Ed.), the authors Archibald, Jull and Roach, at p. 4-15, commented that the concept of due diligence might appear to create a paradox at first sight, but that this paradox can be resolved by distinguishing between risk assessment and risk management, where risk assessment is central to the codified standards (or the actus reus of the offence) that the prosecution must prove were violated and that for considering the defence of due diligence the issue would relate to fault and punishment:

The concept of due diligence might appear to create a paradox at first sight. If the prosecution has proven that the actus reus has occurred beyond a reasonable doubt, how can the defence prove that reasonable steps were taken to avoid that very event or any foreseeable harm? At first blush, due diligence appears to undercut the risk assessment inherent in the actus reus. If one is committed to the values underlying the codification of these standards in the first place, it seems counter-intuitive to now engage in a discussion of their permissible failure. For example, for the environmentalist, it seems wrong to acquit a corporation for permitting a discharge that impairs the environment.

The resolution of this apparent paradox lies in distinguishing between risk assessment and risk management. Risk assessment is central to the codified standards that the prosecution must prove were violated. When the focus shifts to due diligence, the issue relates to fault and punishment. Should an organization or individual be punished for their failure to maintain the codified standards in the particular case? Here the emphasis is on risk management. It is possible that a failure to maintain standards is excusable in all the circumstances when put in a larger context. This is unique to the two-staged element of due diligence.

(3) Did The Defendants Respectively Take All Reasonable Steps In The Circumstances To Ensure That Rip Saw #1 Had Been Shielded Or Guarded So That The Product, Material Being Processed, Or Waste Stock Would Not Endanger The Safety Of Any Worker?

[156] Daniel Sperduti, the operations manager for Alpa Lumber and the management member on the Health and Safety Committee, testified that the workers who feed the pieces of lumber into the rip saw machines are taught to stand to the side of the lumber when the lumber is being fed in. He said this is the way he had also been taught when he had worked at Bel Air Lumber when the same rip saw machines now in the Alpa Lumber plant had been owned by Bel Air Lumber. He also said that the training of a worker to stand to the side of the lumber was to prevent injury from the kickback of the lumber so that the worker's hand would not get bruised. He also said the Operating Manual for Rip Saw #1 was available to any worker to peruse.

[157] However, Van Kham Sichantha, charged as the supervisor of the injured worker, did not testify at trial as to the steps he had taken to ensure that Rip Saw #1 had been shielded or guarded so that the product, material being processed, or waste stock would not endanger the safety of any worker. Although, Anthony Coulter, an Alpa Lumber worker did testify that Van Kham Sichantha had been Coulter's immediate supervisor and had taught him to stand to the side of the lumber when lumber was being fed into the rip saw machines.

[158] Moreover, the defendants submit that the rip saw machines at the Alpa Lumber plant were cleaned and the saw blades inspected and replaced when necessary four times a day by a designated worker, and that these two manufacturer's preventative measures were complied with daily and on the day of the accident, and before Ma Phao had been injured by a stake of wood ejected from Rip Saw #1.

[159] In addition, the defendants submit that they should be able to rely on the guards and shield built into Rip Saw #1 to show that they were not negligent and that they had taken all reasonable care to ensure that the machine had been shielded or guarded so that the product, material being processed, or waste stock would not endanger the safety of any worker. As well, the defendants contend that the particular hazard or danger of a stake of wood being ejected out of Rip Saw #1 was not reasonably foreseeable, since no one had ever seen a piece or stake of wood ever being ejected from any of the rip saw machines at the Alpa Lumber plant and because lumber has been continuously fed into the rip saw machines over the last five years without incident, and that the rip saw machines had been designed and built with guards and shields that would have or should have prevented slivers or stakes of wood from being ejected from the machine.

(a) Reasonable Foreseeability Of The Particular Hazard

[160] In determining whether the particular danger or risk had been reasonably foreseeable, the defendants argue that there had been no prior similar incidents at the plant involving stakes of wood flying out of any of the rip saw machines or anyone raising that problem with the management of Alpa Lumber.

[161] Moreover, the reasonable foreseeability of the danger resulting from an act or omission which constitutes proof of the actus reus of the offence is relevant to assessing due diligence. The issue of foreseeability of a particular risk or danger had been considered by Ontario's Court of Appeal in R. v. Rio Algom Ltd. (1988), 66 O.R. (2d) 674, 46 C.C.C. (3d) 242. In that case, the Court of Appeal had held that the test which should have been applied, was not whether a reasonable man in the circumstances would have foreseen the accident happening in the way that it did happen, but rather, whether a reasonable man in the circumstances would have foreseen that an "overswing" of the gate could be dangerous in the circumstances, and if so, whether the accused corporation in this case had proven it was not negligent in failing to check the extent of overswing in order to consider and determine whether it created in any way a potential source of danger to employees by failing to take corrective action to remove the source of danger:

Nor can the respondent rely upon an assertion that it took all reasonable steps to avoid the accident in question (the particular event). The evidence makes it clear that the respondent took no steps to avoid the accident although the gate could readily have been repaired or a stop block could have been constructed in the ground which would have prevented the gate from overswinging past a 90 degrees angle.

Although the "overswing" of the gate did not adversely affect its utility as a protective device for the purpose for which it was originally intended, that does not relieve the respondent from responsibility for danger of injury to employees resulting from such disrepair even though such danger is not related to the original danger against which the device is designed to protect. Such a defence is not available to the respondent.

I am not prepared to say that every failure to comply with the provisions s. 14(1)(b) of the Occupational Health and Safety Act will result in a conviction thereunder. In applying the principle espoused by Dickson J. in Chapin quoted above, it is my view that the reasonable foreseeability of danger resulting from an act or omission which constitutes prima facie proof of the offence alleged is one of the factors to be considered in deciding whether an accused took all the care which a reasonable man might have been expected to take in the circumstances. If that is what the trial judge purported to do he was correct in so doing.

The trial judge, however, appears to have focused his attention on the fact that none of the witnesses foresaw "this type of accident happening" and that "no one had foreseen the happening of what happened on September 3rd". In my view, in purporting to determine whether the respondent had taken the care which a reasonable man might have been expected to have taken in the circumstances, he applied the wrong test. The test which should have been applied was not whether a reasonable man in the circumstances would have foreseen the accident happening in the way that it did happen, but rather whether a reasonable man in the circumstances would have foreseen that an "overswing" of the gate could be dangerous in the circumstances and if so whether the respondent in this case had proven it was not negligent in failing to check the extent of overswing in order to consider and determine whether it created in any way a potential source of danger to employees and in failing to take corrective action to remove the source of danger.

[162] Furthermore, in his textbook, "Libman on Regulatory Offences in Canada" (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., 2002), at pp. 7-11, Justice Libman noted that "[t]he phrase all due diligence means an area of precaution sufficient to prevent the foreseeable, but not the unforeseen, unexpected or unintended."

[163] In addition, in R. v. Canada Brick Ltd., [2005] O.J. No. 2978 (S.C.J.O.), Hill J. held at paras. 136 to 138, that the subjective foresight of an accused respecting a hazard is a factor for consideration in a due care defence presentation, but not to the exclusion of the overarching approach of an objective assessment of the reasonableness of the foresight of circumstances of harm or a potential accident:

Two matters of some importance to the Crown's argument on appeal emerge from the applicable jurisprudence:

(1) the role of foreseeability in establishing a due diligence defence

(2) the necessity that the employer defendant must show it acted reasonably with regard to the prohibited act alleged in the particulars.

Turning first to the foreseeability issue, subjective foresight of a defendant respecting a hazard is a factor for consideration in a due care defence presentation but not to the exclusion of the overarching approach of an objective assessment of the reasonableness of the foresight of circumstances of harm or a potential accident. "Negligence ... measures the conduct of the accused on the basis of an objective standard, irrespective of the accused's subjective mental state": R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, 67 C.C.C. (3d) 193 (S.C.C.), at p. 252 per Cory J. In other words, liability exists where a defendant knew, or ought to have known, of the dangerous work conditions. In R. v. Rio Algom Ltd., at pages 250-1, the court stated:

I am not prepared to say that every failure to comply with the provisions s. 14(1)(b) [s. 25(1)] of the Occupational Health and Safety Act will result in a conviction thereunder. In applying the principle espoused by Dickson J. in Chapin quoted above, it is my view that the reasonable foreseeability of danger resulting from an act or omission which constitutes prima facie proof of the offence alleged is one of the factors to be considered in deciding whether an accused took all the care which a reasonable man might have been expected to take in the circumstances. If that is what the trial judge purported to do he was correct in so doing.

The trial judge, however, appears to have focused his attention on the fact that none of the witnesses foresaw "this type of accident happening" and that "no one had foreseen the happening of what happened on September 3rd". In my view, in purporting to determine whether the respondent had taken the care which a reasonable man might have been expected to have taken in the circumstances, he applied the wrong test. The test which should have been applied was not whether a reasonable man in the circumstances would have foreseen the accident happening in the way that it did happen, but rather whether a reasonable man in the circumstances would have foreseen that an "overswing" of the gate could be dangerous in the circumstances and if so whether the respondent in this case had proven it was not negligent in failing to check the extent of overswing in order to consider and determine whether it created in any way a potential source of danger to employees and in failing to take corrective action to remove the source of danger.

I am further of the view that the trial judge erred in fact and in law in reaching his conclusion that the accident which happened was not reasonably foreseeable by a reasonable man on the ground the 11 witnesses had not foreseen this type of accident happening and accordingly there was no negligence attributable to the respondent.

(emphasis added)

Turning to the second point, proof of due diligence requires the employer to demonstrate, not its general safety record, but whether it took all reasonable steps "to avoid the particular event": R. v. Sault Ste. Marie, at page 374. Put differently, "The employer must show it acted reasonably with regard to the prohibited act alleged ... not some broader notion of acting reasonably": R. v. Brampton Brick, at para. 28; R. v. Kurtzman, at p. 429; R. v. Imperial Oil, [2000] B.C.J. No. 2031 (QL) (C.A.), at para. 23, 28. In R. v. Rio Algom Ltd., at p. 252, the court stated:

I note that the trial judge appears to have been satisfied that the respondent, in the operation of the mine where the accident took place, has kept safety foremost in its corporate mind at all times and has a good inspection and reporting system in effect to accomplish this purpose. Those are relevant facts to be kept in mind with respect to sentence. They do not, however, assist the respondent to avoid responsibility for the lack of care on its part which resulted in the unfortunate fatal accident. The respondent has failed to prove it was not negligent with respect to the circumstances which caused the fatal accident.

[164] Furthermore, in R. v. MacMillan Bloedel Ltd., [2002] B.C.J. No. 2083 (B.C.C.A.), at paras. 49 to 53, Smith J.A. for the majority, held it is irrational to say that an accused may escape liability for an event that was not reasonably foreseeable by taking all reasonable steps to avoid it. Moreover, Smith J.A. held that the focus of the foreseeability analysis is not on the cause of the undesired event, but on the occurrence of the particular event giving rise to the charge:

Foreseeability of a risk of harm is central to the concept of negligence. To quote the famous dictum of Lord Atkin in Donoghue v. Stevenson, [1932] A.C. 562 at 580, "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." In the context of the defence of due diligence in relation to strict liability offences, the harm is not injury to a neighbour, but the contravention of the relevant statute. That proposition may be demonstrated by reference to the Imperial Oil case, to which my colleague refers at paras. 33 and 34 of her reasons for judgment. In that case, Imperial had, by its carelessness, created the relevant hazard within its plant. As it should have known of the existence of the hazard, it was liable to conviction unless it could bring itself within the second branch of the due diligence defence. This Court held that the fact that Imperial had in place a comprehensive plan to detect leaks in general was irrelevant to the defence of due diligence because, as Finch J.A. (as he then was) said, speaking for the majority, at para. 23:

The focus of the due diligence test is the conduct which was or was not exercised in relation to the "particular event" giving rise to the charge, and not a more general standard of care.

It follows, in my opinion, that the trial judge erred further in embarking upon a consideration of the second branch of the defence of due diligence and in concluding that MacMillan Bloedel had failed to bring itself within it. As I have already noted, the second branch is an alternative available to an accused who cannot bring himself within the first branch. As Dickson J. observed in the passage at p. 366 of his reasons that I have quoted above, once the defence of reasonable mistake of fact is accepted the defence of due diligence is established.

Moreover, and in any event, the trial judge erred in his consideration of the second branch of the defence when he concluded that MacMillan Bloedel had failed to prove that it took all reasonable care to prevent the spill. It is irrational to say that an accused may escape liability for an event that was not reasonably foreseeable by taking all reasonable steps to avoid it. One cannot consciously take steps to avoid an event that one cannot foresee. A reasonable step is one for which a reason can be assigned. No reason could have been assigned for a plan that would have satisfied the second branch of the defence of due diligence in the circumstances here. One could not say, without the benefit of hindsight, that a plan to replace the pipes at any specific time would have been a reasonable step to avoid the escape of fuel into the creek on May 16, 1997, because no one could reasonably foresee the happening of that event. It follows, in my respectful view, that the lack of a plan by MacMillan Bloedel to replace these pipes at a particular time is irrelevant, and the trial judge erred in founding liability on this ground.

While the summary conviction appeal court judge may not have stated the result accurately in legal terms, he reasoned correctly in the passage quoted by my colleague in para. 20 of her reasons for judgment. The criticism that he focused on the cause of the leak is only superficially valid. It is true that the focus of the foreseeability analysis is not the cause of the leak - it is the occurrence of the particular event giving rise to the charge. In this case, that event was the discharge of a deleterious substance into Crabapple Creek on May 16, 1997. That event was not reasonably foreseeable because it was the result of a leak that was not reasonably foreseeable. The leak was not reasonably foreseeable because it was caused by microbiological corrosion that was not reasonably foreseeable. The chain of unforeseeability from the cause of the event to the event itself is one and indivisible. Thus, the reasoning of the summary conviction appeal court judge, although inexact in expression, was correct in substance.

(i) Foreseeability Of The Risk To Operators And Others From Slivers Of Wood And Material Or Product Being Kicked Back Out Of The Machine During The Operation Of Rip Saw #1

[165] The emphasis of the foreseeability analysis is whether a reasonable person in the defendants' circumstances would have reasonably foreseen the danger or hazard that a sliver or stake of wood would be ejected back through the infeed end of Rip Saw #1, and if so, what action would a reasonable person in the defendants' circumstances take to prevent the event and ensure the preventive measures were maintained.

[166] Moreover, the defendants argue that it had not been foreseeable that a stake of wood would be ejected out of the rip saw machine, since the machine had been designed to prevent slivers of wood or material or product from being kicked back out of the infeed opening of the rip saw machine and because a stake of wood had never been seen by anyone being ejected out of the rip saw machines in the last five years that the rip saw machines were being operated at the plant.

[167] In particular, Daniel Sperduti, Alpa Lumber's operations manager, testified that no one had approached him about a problem with stakes of wood being ejected from the rip saw machines at the plant. In addition, none of the workers who had testified at trial had ever observed a splinter or stake of wood being ejected by any of the rip saw machines at the Alpa Lumber plant during their years of working for Alpa Lumber.

[168] First, the danger or hazard that a sliver or stake of wood would be ejected back through the infeed end of Rip Saw #1 had been reasonably foreseeable in the circumstances, despite that no one employed at the plant had ever seen a sliver or stake of wood being ejected from a rip saw machine at the plant and that no one had brought that issue of stakes of wood being ejected out of rip saw machines to the attention of their supervisor or to the management of Alpa Lumber. Bearing in mind that it is not whether the hazard had been reasonably foreseeable to a particular person, but whether the hazard or danger that a sliver or stake of wood could be ejected back through the infeed end of Rip Saw #1 had been reasonably foreseeable to a reasonable person in the circumstances, and if it is so, what action would a reasonable person in the defendants' circumstances take to prevent the event and ensure the preventive measures were maintained.

[169] But more importantly, the danger or hazard that a sliver or stake of wood could be ejected back through the infeed end of Rip Saw #1 had been specifically identified by the manufacturer in the 2007 Operating Manual for Rip Saw #1. The manufacturer had expressly set out and identified a list of "remaining" risks and hazards in the operation of the machine at p. 56 of "splinter or kick-backs", which the manufacturer indicates could be caused by the "Saws in poor condition", the "Exhaust too weak or clogged", "Gang ripping without pressure board", "Anti-kick-back fingers and splinter guards jammed (dirty, clogged with resin)", or "Individual anti-kick-back fingers working badly or not at all"; at p. 2, that the "operator should not remain immediately in front of the infeed opening of the machine", which is recognition by the manufacturer of the inherent risk or hazard to the operator of the machine from something being potentially kicked back out of the infeed opening of the machine; and at p. 15, the manufacturer expressly states that the orderly application of the machine includes "paying attention to the operator manual" and that "all safety rules have to be strictly observed". In addition, at p. 15, the manufacturer states that the machine has been designed according to the latest safety standards, but that there is, however, the risk of danger to "the operator or third persons, the machine, or other real values", and that the machine still has remaining risks, including the risk of "kicked back material or splinters" and the risks associated with defective anti-kickback fingers that are clogged, wrongly adjusted, rusty, or bent. However, the manufacturer also states at p. 15, that these remaining risks can be avoided by following the safety instructions set out in the manual.

[170] Moreover, if any of the workers, supervisors, or the managers of Alpa Lumber had read or made themselves aware of the contents of the 2007 Operating Manual for the operation of Rip Saw #1, then they ought to have been aware of the "remaining" risks, dangers, or hazards identified by the manufacturer in the operation of Rip Saw #1 and to be also acquainted with the manufacturer's requirements for operating the rip saw machines properly and safely to prevent the risk or danger from splinters and the kick back of material through the infeed opening of Rip Saw #1.

[171] In sum, it had been reasonably foreseeable that a splinter or shard of wood could be ejected from a machine, even when it had been designed with four levels of fail-safe protection to prevent the kick-back of wood that is being cut by the machine if the manufacturer's requirements to prevent the risks of splinters and kickbacks had not been followed or complied with.

(ii) Did The Defendants Take All Reasonable Steps To Prevent Workers From Being Injured By Product Or Material That Had Been Ejected Or Kicked Back Out Of Rip Saw #1?

[172] The 2007 Operating Manual had stated at p. 15 that the orderly application of the machine includes "paying attention to the operator manual" as well and that "all safety rules have to be strictly observed". However, Alpa Lumber only had the 2005 Operating Manual for the same model of rip saw machine that Rip Saw #1 had been, but did not have the proper 2007 Operating Manual in the plant.

[173] Furthermore, the situation in the case at bar in which an operating manual for a machine had been lacking or not available to the defendants had similarly occurred in R. v. XI Technologies Inc., 2013 ABCA 282, [2013] A.J. No. 805 (A.C.A.), in which an employee of XI Technologies Inc. had been killed while operating a stationary calf-roping and mechanical horse riding machine that been rented by XI Technologies Inc. for a client appreciation event to entertain the partygoers. At paras. 39 to 42 of their judgment, the Alberta Court of Appeal had held that the test for foreseeability is not whether a particular individual would have foreseen the danger, but whether it was reasonably apparent to a reasonable person in the circumstances. The Court of Appeal also emphasized that the failure to recognize the risk would not necessarily mean that it had not been reasonably foreseeable. As well, the Court also found that there had been a lack of due diligence when XI Technologies Inc. went ahead in operating the mechanical riding machine without having someone present at the party that had any familiarity with its operation, since neither an operator from the company that had supplied the machine had been present to operate the machine nor had XI Technologies Inc. obtained a manual or a proper set of written instructions for operating the machine:

Although Fenemore had experience in risk management in relation to oil and gas field operations, his failure to recognize the risk does not mean that it was not reasonably foreseeable. The test is not whether Fenemore would have foreseen the danger, but whether it was reasonably apparent to a reasonable person in the circumstances. We agree with the summary conviction appeal judge that the danger created by having to manually reach into the machine to remove the hinge hook was reasonably foreseeable in the circumstances, and XI Technologies failed to take corrective steps in relation to that danger.

This is not a situation where XI Technologies recognized the danger and tailored its operating procedures to address it. Fenemore himself advised that he would have stopped using the machine had he recognized that Shair's head was getting in the way. Unfortunately he failed to ascertain that danger. Other alternatives could potentially have minimized the risks, such as having the rider stay off the machine until the calf was locked into position and the hinge hook removed, or even to have two operators work in conjunction to avoid one getting in the way of the lever perhaps by having one operator hold the lever while the other remove the hinge hook from the side. But none of the operating procedures addressed, or recognized, the danger to the single operator as he held the lever with one hand, and in fact pulled it forward, while attempting with the other hand to remove the hinge hook, all with a rider sitting atop the machine next to a sensitive release trigger.

That XI Technologies would even consider operating a machine that no one had any familiarity with and without either its own operator or a proper set of written instructions in itself speaks volumes as to the lack of its due diligence in this matter. This is particularly so given that the machine was going to be used by party goers who would be consuming alcohol.

Conclusion

Accordingly, we are of the view that the summary conviction appeal judge properly found that the trial judge's decision that the risk was only obvious with the benefit of hindsight was incompatible with the balance of the evidence accepted by the trial judge, that XI Technologies did not do all that was reasonably practicable in the circumstances to avoid the reasonably foreseeable risks, and that the operating procedures had not eliminated the significant risks involved with the ride.

[174] But more importantly, there is no evidence that any worker, supervisor, or manager of Alpa Lumber had read either the 2005 Operating Manual or the 2007 Operating Manual for Rip Saw #1. More importantly, they could not have read the 2007 Operating Manual, since it had not been at the Alpa Lumber plant before Ma Phao had been injured on May 6, 2014. As such, neither Alpa Lumber nor Van Kham Sichantha could say that they had been aware of the risks and hazards identified by the manufacturer in the operation of Rip Saw #1 and the safety precaution that had to be strictly followed for the safe and proper operation of Rip Saw #1.

[175] Moreover, just because the 2007 Operating Manual did not refer to or mention having to put up a barrier to protect workers in the vicinity of the infeed end of Rip Saw #1, the Operating Manual at p. 15 did state that the "operator should not remain immediately in front of the infeed opening of the machine" and that there was still the risk of danger to "the operator or third persons, the machine, or other real values", from the risk of "kicked back material or splinters". As such, because of the inherent risk to workers in the vicinity of the infeed opening of Rip Saw #1, especially to a worker who could be standing immediately in front of the infeed opening of the machine, then both Alpa Lumber, as employer, and Van Kham Sichantha, as supervisor, would have had to take appropriate measures in preventing the potential danger to workers in the vicinity of the infeed opening of Rip saw #1 that could have included instructing all workers, beside just instructing the worker who feeds the lumber into the rip saw machines, not to stand immediately in front of the infeed opening, or to erect some type of barrier so that workers would not be working immediately in front of the infeed opening of Rip Saw #1, or to position the infeed opening of Rip Saw #1 away from any area where there would be workers standing or working immediately in front of the infeed opening of Rip Saw #1.

[176] Moreover, the manufacturer of the rip saw machine specifically set out the risks in operating the rip saw machine if the machine was not cleaned regularly, the saw blades checked and replaced regularly, and the anti-kickback fingers or teeth swiveled and checked regularly to determine if the anti-kickback teeth or fingers were broken or not functioning properly. Furthermore, there is no evidence that Alpa Lumber, as employer, nor Van Kham Sichantha, as supervisor, had instructed the designated cleaner of the rip saw machines or any other worker to daily check the anti-kickback teeth or fingers and to swivel them several times a day to ensure they were working properly.

[177] Therefore, neither Alpa Lumber nor Van Kham Sichantha had taken all reasonable steps in the circumstances to ensure that Rip Saw #1 had been shielded or guarded so that the product, material being processed, or waste stock would not endanger the safety of any worker.

(4) Did The Defendants' Respectively Have A Reasonable But Mistaken Belief In A Fact That Would Make Their Act Or Omission Innocent?

[178] For the second branch of the due diligence defence, the defendants in the alternative contend that they had both honestly and reasonable believed, although they had been mistaken, that the built-in shields and guards in Rip Saw #1 would have prevented a stake of wood from being ejected from the rip saw machine.

[179] Furthermore, in order for either defendant to prove this branch of the due diligence defence, each defendant must demonstrate that not only was the mistake of fact an honest one, but that it had also been based on reasonable grounds: R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 (S.C.C.), at p. 1318:

In this respect, the defence of mistake when raised as a defence to an offence of strict liability is very different than is the defence of mistake of fact when it is raised in a case involving mens rea as an essential ingredient of the offence. In the former case, the mistake of fact must not only be an honest one, but it must be based on reasonable grounds and it must be proved by the accused on the balance of probabilities. In the latter case the defence need only be an honest one and need not necessarily be based upon reasonable grounds and it need only cause the Court to have a reasonable doubt: see R. v. Morgan et al., [1975] 2 W.L.R. 913 (H.L.) and Beaver v. The Queen (1957), 118 C.C.C. 129, [1957] S.C.R. 531, 26 C.R. 193.

[180] In addition, in Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No 12 (S.C.C.), Lebel J. held, at para. 30, that passive ignorance is not a valid defence in criminal law and that the concept of diligence is based on the acceptance of a citizen's civic duty to take action to find out what his or her obligations are:

In Mr. Tétreault's case, the judgments of the courts below confused passivity with diligence. The accused did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying the fees required to keep the licence valid. He proved no action or attempt to obtain information. The concept of diligence is based on the acceptance of a citizen's civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law. Consequently, the acquittals are unfounded in this case. The Municipal Court should have found the respondent guilty as charged and imposed the fine prescribed by law.

[181] Furthermore, in his textbook, "Libman on Regulatory Offences in Canada", (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., (student edition #1 (2014)), at p. 7-189, Justice Libman highlighted John Swaigen's comments on whether an accused's defence of mistake of fact had been reasonable in Swaigen's treatise, Regulatory Offences in Canada - Liability & Defences (Scarborough, Canada: Carswell - Thomson Professional Publishing, 1992), at p. 81, in which Swaigen had explained that in order to show that a mistake of fact was reasonable, the accused must demonstrate that he or she took all reasonable steps to ascertain the true state of affairs:

There is a relationship between mistake of fact and due diligence. Both involve the question of whether the accused exercised all reasonable care. As Swaigen states, to show that a mistake of fact was reasonable, the accused must demonstrate that he or she took all reasonable steps to ascertain the true state of affairs. Notwithstanding the similarity, though, between mistake of fact and due diligence as they relate to the issue of reasonable care, the court's analysis may recognize that they constitute "separate and distinct defences".

[182] Furthermore, Justice Libman also explained in his textbook, Libman on Regulatory Offences in Canada, at pp. 7-189 to 7-190, by using the case of R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5 (S.C.C.) to illustrate, that an accused has to take care to acquire knowledge of the facts constituting the offence and that failure to acquire such knowledge would not afford the accused the defence of a mistake of fact:

the case of R. v. Pierce Fisheries Ltd. Affords an illustration of a case where there was a lack of care taken by the defendant to acquire knowledge of the facts constituting the offence. As it would not have been a difficult matter for an officer or responsible person of the accused company to acquire knowledge of the undersized lobsters which were being packaged on the premises on the day in question, failure to acquire such knowledge did not afford a defence.

[183] Justice Libman has also provided another illustration in his textbook, at p. 7-190, in which the defence of mistake of fact had not been made out when there had been a failure of the accused to ensure that the equipment or protective devices had been maintained in good condition. In the circumstances of the R. v. Rio Algom Ltd. Case, where a gate had been damaged and over-swung and had resulted in the fatal injury to one of the company's employee, the Court of Appeal for Ontario held that the accused's defence of reasonable belief in a mistaken set of facts could not prevail when the accused simply proves that it was mistaken in believing there was no danger of injury to any employee, especially where the injury to the employee had been the result of a failure by the accused to ensure that the equipment or protective devices had been maintained in good condition. Moreover, Justice Libman had explained in his textbook that an accused must show that they had reasonably believed in the mistaken set of facts and that the test for this determination is in effect a combination of subjective and objective elements. In addition, Justice Libman emphasized that whether an accused person had actually believed or not in a mistaken set of facts depends on proof either directly or inferentially of what was subjectively in the accused's mind at the time, and whether that belief was reasonable or not will be determined after an objective examination of the facts which were known to the accused or should have been known to the accused when the accused had formed that belief. Hence, the test is whether a person in the accused's position, with the knowledge that they had or should have had, reasonably have reached the conclusion that they did:

A further illustration appears in R. v. Rio Algom Ltd., where the accused was charged with failing to ensure that protective devices were maintained in good condition, contrary to occupational health and safety legislation. The gate in question had been damaged, it over-swung, resulting in a fatal injury to an employee. The court ruled that the accused failed to show that it was not negligent in failing to determine the effect of the damage to the gate. The defence of reasonable mistake of fact was not available, as there was no evidence that the accused reasonably believed that the gate was not in a state of disrepair, or that it had some other reasonable belief in a mistaken set of facts which would absolve it from blame. In delivering the court's decision, the Court of Appeal commented on the mistake of fact defence as follows:

A defence to a strict liability offence put forward on the basis of a reasonable belief in a mistaken set of facts cannot prevail where an accused simply proves that he was mistaken in believing there was no danger of injury to any employee as a result of a failure to ensure equipment or protective devices were maintained in good condition or that every precaution reasonable in the circumstances was taken for the protection of a worker unless such failure or failures were based on a reasonable belief in a mistaken set of facts which, if true, would render the act or omission innocent.

Where the defendants put forth the defence of mistake of fact, they must show that they reasonably believed in the mistaken set of facts. The test is in effect a combination of subjective and objective elements. Whether a person actually believed or not depends on "proof either directly or inferentially of what was subjectively in his mind at the time". Whether that belief was reasonable or not will be determined after an objective examination of the facts which were known to him or should have been known to him when he formed the belief. In other words, "could a person in the defendant's position, with the knowledge that he had or should have had, reasonably have reached the conclusion he did".

[184] Furthermore, in R. v. Petro-Canada (2003), 171 C.C.C. (3d) 354, (O.C.A.), Goudge J.A. reasoned, at paras. 20 to 22, that for an accused to prove all reasonable care had been taken would require more than just arguing that the best equipment had been purchased and installed, as the precautionary steps that had been taken by the accused to prevent the event that had occurred:

For these reasons I do not think that the law requires the accused to prove precisely how the discharge came about - in this case precisely why the pipe failed - in order to avail itself of the due diligence defence. On the other hand, in a case where the accused can do this, it may be able to narrow the range of preventative steps that it must show to establish that it took all reasonable care. However where, as here, the accused cannot prove the precise cause of the pipe failure the due diligence defence is not rendered unavailable as a result. That being said, it must be emphasized that to invoke the defence successfully in such circumstances, the accused must show that it took all reasonable care to avoid any foreseeable cause.

In my view, the ITT case, supra, is not inconsistent with this approach. In that case the accused was charged with permitting the discharge of a contaminant. The exact cause of the discharge was undetermined. The accused attempted unsuccessfully to establish due diligence simply by showing that it had purchased and installed the best equipment and that the recording devices on this equipment showed no breakdown.

In denying leave to appeal, Carthy J.A. noted that the latter evidence leads nowhere once a discharge is established. He went on to indicate that the due diligence defence was flawed in this case by the failure to demonstrate what happened, why, and what steps were taken to prevent the occurrence in the functioning of the plant on that day. In saying this Carthy J.A. was not making proof of the precise cause of the discharge a legal prerequisite to the due diligence defence. He is simply saying that the defendant must go beyond the purchase and installation of the best equipment to show what steps were taken to prevent the discharge on that day and that these steps constitute reasonable care, something which may be more easily demonstrated if it can be shown how the discharge occurred.

(a) Are Both Defendants' Belief That The Shields And Guards Built Into Rip Saw #1 Would Prevent A Stake Of Wood From Escaping The Machine Reasonable?

[185] To reiterate, the defendant, Van Kham Sichantha, who had been charged as the supervisor of the injured worker that had failed to ensure that a machine had been guarded or shielded where material or product being processed by the machine could injure a worker, did not testify. As such, there would be no evidence of his subjective belief that he had reasonably believed that the guards and shields built into Rip Saw #1 would have prevented the stake of wood from escaping the machine and injuring a worker. Nor could an inference be made from the evidence adduced that Van Kham Sichantha had subjectively believed that the guards or shields built into Rip Saw #1 would prevent a stake of wood from being ejected out of the machine.

[186] Furthermore, in respect, to the Alpa Lumber's belief that the guards and shields built into Rip Saw #1 would have prevented the stake of wood from escaping the machine and injuring a worker Rip Saw #1, the evidence of that subjective and reasonable belief that could be attributed to the corporate defendant had come from Daniel Sperduti, the operations manager, at the Alpa Lumber plant, who also had been the management member of the health and safety committee. Daniel Sperduti, had testified that similar to when he had been employed as an operator of the rip saw machines and feeding lumber into those rip saw machines when they were the property of Bel Air Lumber, the operators of the rip saw machines at the Alpa Lumber plant had been trained to stand to the side of the lumber being fed into the rip saw machines so that their hand would not get bruised by any kickback of lumber being fed into the machine, that the rip saw machines were regularly cleaned and the saw blades checked 4 times day, and the operating manual for the rip saw machines had been in the plant and available to any worker to peruse, and that he had never received any complaint about stakes of wood being ejected from any rip saw machine during its operation and that the rip saw machines had been set up similar to the way they had been set up when the rip saw machines had been owned by Bel Air Lumber, namely that the input end of one rip saw machine was in line with the output end of another rip saw machine.

[187] However, Daniel Sperduti's testimony had been incorrect that the operating manual for Rip Saw #1 had been in the plant and available for any worker to peruse, since the Operating Manual that had been provided to MOL Inspector Coulter after the accident had been for the rip saw model manufactured in 2005 and not the correct Operating Manual for Rip Saw #1, which had been manufactured in 2007.

[188] Moreover, Sperduti's interpretation that any kickback would only bruise an operator's hand is only conjecture on Sperduti's part, since there is no evidence that he had actually read the operator's manual for Rip Saw #1 or that he had acquainted himself of the inherent risks remaining in the operation of rip saw machines and the safety instructions provided by the manufacturer of the machine and expressed in the operator's manual.

[189] On the other hand, since the operating manual for Rip Saw #1 had identified inherent risks, dangers, and hazards, and the safety and precautionary measures that had to be followed and undertaken to prevent splinters and the kickback of materials in the operation of the machine, then it would been critical to the proper and safe operation of the machine to have managers, supervisors, and workers being familiar with the contents of the operating manual. However, it would be difficult for managers, supervisors, and workers for Alpa Lumber to be familiar with the contents of the operating manual if the proper operating manual was not in the plant or available for anyone to view.

[190] To reiterate, there is no evidence that the proper operating manual for Rip Saw #1, which would be an operating manual for the 2007 model ProfiRip KM 310 rip saw machine, had been in the plant or at any time in the plant before the accident. As such, no one at the plant could have properly acquainted themselves with the inherent risks in the operation of Rip Saw #1 or to be aware of the strict requirements that had to be taken or the particular actions or measures that had to be undertaken to ensure that the guards and anti-kickback teeth or fingers in the machine had been properly working so as to prevent splinters and material from being kicked back out of the machine.

[191] Nor, is there any evidence that the operations manager, Daniel Sperduti, or anyone with a supervisory or management role with the corporate defendant, Alpa Lumber, had obtained the proper and correct operating manual for Rip Saw #1, from the manufacturer or that they had read or acquainted themselves with the contents of the operating manual for the 2007 model year of the rip saw machine, which had ejected the stake of wood that had injured the worker, Ma Phao.

[192] In addition, there is no evidence that the defendant, Van Kham Sichantha, as the injured worker's supervisor, had read or acquainted himself with the contents of the operating manual for the 2007 model year of the rip saw machine, which had ejected the stake of wood that had injured the worker, Ma Phao.

[193] More importantly, the operating manual for Rip Saw #1 had specified that reading and being familiar with the contents of the operating manual which had identified the risks and hazards with operating the machine had been one of the steps or instructions required for the proper and safe operation of the machine. In particular, at p. 15 of the 2007 Operating Manual (Exhibit #14) under the section 4.2 heading of "Orderly Application and Remaining Risk", the manufacturer had expressly stated that the orderly application of the machine includes "paying attention to the operator manual", as well that "all safety rules have to be strictly observed". As such, as there is no evidence that any manager, supervisor, or worker had read the 2007 Operating Manual or acquainted themselves with the contents of that Operating Manual (or even the 2005 Operating Manual), then neither Alpa Lumber or Van Kham Sichantha could argue that they had been aware of the inherent risks or hazards in the operation of Rip Saw #1 and the required safety measures or precautions to ensure that the guards and anti-kickback teeth or fingers in Rip Saw #1 were properly functioning to prevent splinters and material from being kicked back out of the machine.

[194] The operating manual also did not indicate that no splinters or a shards of wood would not escape or could not be ejected through the infeed opening of the rip saw machine. Instead, the manufacturer stated in the manual that operators were forbidden to stand immediately in front of the infeed opening of the rip saw machine when feeding lumber into the infeed opening and that splinters and kickback of materials had been a "remaining risk". As such, even the manufacturer did not rely on its own design of built-in shields and guards that the guards and shields would prevent all splinters and shards of wood from being kicked back out through the infeed opening of the rip saw machine.

[195] Additionally, the operating manual also identified and specified how the risk or hazard of splinters and the kickback of materials could arise where specific precautions were not taken. These precautions and measures included keeping the saw blades sharp and keeping the anti-kickback teeth or fingers unclogged by keeping them free of sawdust and properly operating by "swiveling" the anti-kickback teeth or fingers several times a day and replacing any broken anti-kickback teeth or fingers or ones not functioning properly.

[196] Therefore, it is reasonably foreseeable that the guards or shield designed and built into Rip Saw #1 could not prevent slivers or material being kicked back out of the machine if the manufacturer's required actions to properly maintain and operate the rip saw machine were not followed or complied with. Accordingly, the failure of Alpa Lumber, as the injured worker's employer, or Van Kham Sichantha, as the injured worker's supervisor, to obtain the correct operating manual for Rip Saw #1 that would match the machine's year of manufacture, or to acquaint themselves with the contents of the operating manual for Rip Saw #1, or to acquaint themselves with the risks and hazards identified by the machine's manufacturer in the operating manual, or to acquaint themselves with the safety measures and precautions required by the manufacturer to prevent splinters and the kickback of material when Rip Saw #1 was being operated, as well as acquainting themselves with the other "remaining" risks and hazards identified by the manufacturer in the operating manual and their failure respectively to set up a program to regularly inspect and "swivel" the anti-kickback teeth or fingers for Rip Saw #1 and to regularly check and maintain the anti-kickback teeth or fingers on Rip Saw #1 as specified in and required by the manufacturer's operating manual, is evidence that neither defendant had taken all reasonable steps to ensure that Rip Saw #1 was shielded or guarded so that the product or material being processed would not endanger the safety of any worker or that the guards or shields built into Rip Saw #1 had been effective and operating properly so that the product or material being processed would not endanger the safety of any worker.

[197] Moreover, the expert witness, Charles Charron, had testified that in his inspection of the anti-kickback teeth or fingers in Rip Saw #1 that one of the anti-kickback teeth or finger would stick and not return automatically until he had moved the adjacent anti-kickback tooth or finger to the stuck anti-kickback tooth or finger. Charron also said that one of the anti-kickback teeth or finger had been broken and had to be replaced. But more important, the operating manual for Rip Saw #1 had specified that the anti-kickback teeth and fingers had to be regularly checked to see that they were operating properly and any damaged teeth or fingers had to be replaced. Although there is evidence that the rip saw machines, including Rip Saw #1, had been regularly cleaned, that the guards had been checked to see that they were moving properly, and that the saw blades in the rip saw machines were inspected and changed if necessary on a regular basis by a worker assigned to clean the rip saw machines and inspect and change the saw blades if necessary four times a day, there is no evidence that the anti-kickback teeth or fingers were inspected and "swivelled" several times a day or on a regular basis by anyone to check that they were operating properly and to replace or repair any broken or malfunctioning anti-kickback teeth or fingers when necessary to do so, nor evidence of any system set up to check and ensure that the anti-kickback teeth or fingers were "swiveled" several times a day or that the manufacturer's measures were complied with to ensure the anti-kickback teeth or fingers were functioning properly and regularly inspected.

[198] And, as emphasized by Goudge J.A. in R. v. Petro-Canada (2003), 171 C.C.C. (3d) 354, (O.C.A.), at paras. 20 to 22, that taking all reasonable care also requires more than just arguing that the best equipment had been purchased and installed, to show what steps had been taken to prevent the event that had occurred. In short, both defendants would have had to demonstrate respectively that they took all reasonable steps to ascertain the true state of affairs in order to show that a mistake of fact was reasonable. Moreover, the defendants would have had to respectively take proper care to acquire knowledge about the measures and requirements to properly operate the rip saw machines safely, to ensure that the machine's protective elements were functioning properly, and to prevent any of the inherent risks outlined by the manufacturer in the 2007 Operating Manual from occurring, including the risks from splinters and material being kicked back by the machine's saw blades. Being passive and simply relying on the machine's internal shields and guards would not demonstrate that either defendant had taken all reasonable steps respectively to ensure the safety of the workers at the Alpa Lumber plant working in the vicinity of Rip Saw #1 while it was operating.

[199] Accordingly, the defendants have not met their respective burdens in proving on a balance of probabilities that they had either had honestly and reasonably been mistaken that the guards and shields built into Rip Saw #1 that would have prevented a stake of wood from being ejected out of the machine that would injure a worker, or alternatively, that they had taken all reasonable care in the circumstances to ensure that Rip Saw #1 had been guarded or shielded from material or product being processed by Rip Saw #1 to prevent a worker from being injured by material being ejected or kicked back out of the machine by ensuring that the machine had been guarded or shielded on May 6, 2014, to avoid being convicted of contravening s. 26 of O. Reg. 851/90 set out respectively in counts #1 and #2.

5. DISPOSITION

[200] For Count #1, the Crown has proven beyond a reasonable doubt that the corporate defendant, Alpa Lumber Mills Inc., operating as Alpa Lumber Mills, had failed as an employer, to ensure that the measures and procedures prescribed by s. 26 of Ont. Reg. 851/90 were carried out were carried out on May 6, 2014, at a workplace located at 13130 Dufferin Street, King City, Ontario, thereby committing an offence under s. 25(1)(c) of the OHSA, by failing to ensure a machine was shielded or guarded so that the product or material being processed would not endanger the safety of any worker. A conviction will therefore be entered against the corporate defendant, Alpa Lumber Mills Inc., operating as Alpa Lumber Mills.

[201] And for Count #2, the Crown has proven beyond a reasonable doubt that the defendant, Van Kham Sichantha, as a supervisor, had failed to ensure that the measures and procedures prescribed by s. 26 of Ont. Reg. 851/90 were carried out on May 6, 2014, at a workplace located at 13130 Dufferin Street, King City, Ontario, thereby committing an offence under s. 27(1)(a) of the OHSA, by failing to ensure a machine was shielded or guarded so that the product or material being processed would not endanger the safety of any worker. A conviction will therefore be entered against the defendant, Van Kham Sichantha.

Dated at the City of Brampton on October 11, 2016.

QUON J.P.

Ontario Court of Justice