Court File and Parties

Date: 2016-04-28

Court File No.: Toronto

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Avenue Building Corporation

Before: Justice Mara Greene

Reasons for Judgment Released: April 28, 2016

Counsel:

• J. Chan for the Respondents
• A. Miedema for the Appellants

Introduction

[1] On February 12, 2013, Mr. Silva broke his leg at work when a 4x4 he was using to move a wall form broke causing Mr. Silva to fall. At the time, Mr. Silva was working for Avenue Building Corporation at a construction site located at 2157 Lakeshore Boulevard West. As a result of this accident, Avenue Building Corporation was charged under the Occupational Health and Safety Act. The charge that Avenue Building Corporation faced, while somewhat convoluted in the information before the court, was effectively an allegation that they violated section 37(1) of the Ontario Regulation 213/91 under the Occupational Health and Safety Act, by failing to ensure that a wall form was moved in a manner that did not endanger a worker.

[2] The learned justice of the peace hearing the trial found the corporation guilty. The corporation appeals this verdict.

Evidence

[3] Mr. Da Silva, a long standing employee of Avenue Building Corporation testified that he was a trained carpenter who had substantial experience with wood as well as experience in moving the kind of wall form that was being moved on the day that he was injured. According to Mr. Da Silva, a crane would place down the wall form within an inch or so from its target location. Mr. Da Silva would then have to move it slightly into place by pushing it. These small adjustments were necessary because the crane was not capable of placing the wall form in the exact location that it was required.

[4] On February 12, 2013, Mr. Da Silva was working with an apprentice named Mr. Dutra. A wall form had been placed on the floor and Mr. Da Silva and Mr. Dutra needed to move it a short distance (half of an inch to an inch). They tried to use the steel pry bar provided by the corporation first, as per their training, but it kept slipping. Mr. Da Silva explained that with the cold, the pry bar will often slide. With the pry bar being an ineffective tool, Mr. Da Silva decided to use a 4x4 to move the wall form the short distance. He picked up a nearby 4x4 and wedged it into place and then pushed on it to move the wall form. Unfortunately, when pressure was placed on the 4x4, instead of moving the wall form, the 4x4 broke. Mr. Da Silva fell and broke his leg.

[5] Mr. Dutra also testified at trial. According to Mr. Dutra, the wall form that was being moved on February 12, 2013 only had to be moved ½ an inch. Mr. Dutra confirmed that Mr. Da Silva first tried to use a power bar to move the wall form and when this did not work, he picked up a brand new 4x4 and used this 4x4 to move the wall form. It snapped while Mr. Da Silva was pushing on it.

[6] Mr. Da Silva testified that Avenue Building Corporation trained him to use a pry bar when moving wall forms. The company not only trained him on how to use a pry bar and that the appropriate tool was a pry bar, the company also provided him with pry bars to use when moving a wall form. Mr. Da Silva testified that he was never given permission to use a 4x4 but he had also not been told explicitly that he should not use a 4x4. Moreover, Mr. Da Silva had not been provided any training on using a 4x4 to move a wall form. Nonetheless on numerous occasions in the past he has used a 4x4 instead of a pry bar to move a wall form. Mr. Da Silva further testified that he has seen other employees use 4x4s as well. In all his years working as a trained carpenter, Mr. Da Silva had never had a 4x4 break on him while he was using it.

[7] Mr. Dutra confirmed that the company trained the employees to use a power bar (which appears to be the same tool as a pry bar) when moving wall forms but that at times, Mr. Da Silva used a 4x4 instead. Mr. Dutra had never seen any other employee use a 4x4.

[8] In relation to general safety, Mr. Da Silva testified that Avenue Building Corporation ran regular safety meetings for the staff that included training on procedures, fall arrest and WHMIS. The company has an internal employee who specifically conducts the safety training and provides feed-back to the staff. Avenue Building Corporation also conducts safety checks and audits.

[9] Mr. Dutra also testified that the company held safety talks on the job and that a safety person attended at the job site at least once a week.

[10] In addition to the safety instruction, Mr. Da Silva testified that as a trained journey man carpenter, who worked with wood all the time, he was in a position to make decisions about how to move the wall forms. According to Mr. Da Silva, 4x4s are used in making the spine of homemade wall forms and have the strength to withstand concrete being poured between them. He saw no difficulty in choosing to use the 4x4 instead of the pry bar even though the company specifically instructed him to use pry bars.

[11] On the day of the accident, Karim Kassam, a health and safety officer was called and examined the scene of the accident. When he arrived he immediately spoke to the onsite supervisor, Vince Bifolchi, who showed him where the incident occurred and provided all documents and information requested.

[12] Avenue Building Corporation had a manual outlining the procedures for the work place. It did not include any reference to how the wall forms should be moved. As a result of this accident, and in compliance with the rules, immediately after this accident, Avenue Building Corporation changed their manual to include specific instructions on what tools should be used when moving wall forms.

[13] It was Mr. Kassam's opinion that the right tool to move something the size of the wall form being moved in this case was a pry bar. Mr. Kassam testified that at other sites, none that he attributed to Avenue Building Corporation, he has seen workers using 4x4's to move larger items. On each occasion, he had instructed them to use a pry bar instead. Mr. Kassam was not asked why a 4x4 is an improper tool to move larger items. The foundation of his opinion was not explored by either party.

[14] Mr. Paul Patullo, a shareholder in Avenue Building Corporation and the safety manager for the company testified about the safety programs that were in place at the time of the accident. According to Mr. Patullo, the construction site where the accident took place had a regular foreman and a supervising foreman. Mr. Patullo checked in daily with the foremen at each construction site.

[15] It was part of Mr. Patullo's duties to create procedures for the work that was done. According to Mr. Patullo the staff were trained to use a pry bar and not a 4x4 when moving a wall form. While this instruction was not included in their written material at the time of the accident, it was clearly taught and explained to the staff. As noted above, both Mr. Da Silva and Mr. Durko confirmed this.

[16] Mr. Patullo testified that while the staff were trained to use a pry bar, had he ever seen a staff member using a 4x4 to move larger items a short distance, this would not have troubled him. It was his view, that a 4x4 could be a proper tool to move wall forms.

[17] James Patullo, engineer and president of Avenue Building Corporation, testified generally about the safety training at Avenue Building Corporation. He testified that the job site is a very dangerous place and that the company tries to ensure that everyone arrives and leaves safely. To that end, they basically try to teach the employees to use common sense. The specific safety instruction that takes place, he could not provide much detail about as this was Paul Patullo's domain.

[18] When asked for his expert opinion about using a 4x4 to move a large wall form, Mr. Patullo testified that, in his opinion, it was safe to use a 4x4 to make fine adjustments of large items. He clarified that by fine adjustment; he meant within an inch or two. Given his opinion on this point, Mr. Patullo was asked why the 4x4 used on February 12, 2013 broke. Mr. Patullo testified that he did not witness the accident nor did he examine the 4x4 used so he could not testify as to why the 4x4 broke. He went on to testify that either the wood was defective or, there was too much load for the 4x4 or, the fulcrum was in the wrong place.

[19] Mr. Patullo testified that the weight and load that a 4x4 can handle is dependent on a number of different factors including the length of the fulcrum and the weight of the load. The means to assess whether a 4x4 can handle the load is not taught to the employees at Avenue Building Corporation. Mr. Patullo testified that the workers at their job sites have experience and will have learned the right fulcrum and load strengths from trial and error. Despite these limitations, Mr. Patullo maintained that in his opinion, a 4x4 can be a useful tool to move a wall form an inch or two where the pry bar is slipping as the 4x4 will not slip. He went on to testify that a steel pry bar can also break if the load is too great.

[20] At trial, the Crown argued that the actus reus was easily made out by the fact of the injury and that the only real issue was whether the corporation exercised due diligence. The Crown argued that due diligence was not made out. The prosecution argued that the corporation did not take every reasonable precaution to avoid the accident as they allowed workers to use their own discretion about the tools they used without training them on how to exercise that discretion. Moreover the corporation did not have a written policy on how to move wall forms.

[21] Defence counsel argued that the employees were never told that they could use their discretion in selecting the appropriate tools to move a wall form. The workers were specifically trained to use a pry bar. The employees were told generally that they should use their common sense at the work place to ensure a safe work environment which is different from being told to use whatever tool they think best. While Mr. Patullo admitted that in his mind a 4x4 is a proper tool to move a wall form, he did not admit that he ever saw this take place. The Corporation further argued at trial that there was no evidence that the corporation knew that Mr. Da Silva was using 4x4s to move wall forms. Mr. Da Silva acted alone and without the permission of his employer.

[22] Crown counsel, in reply, disputed that Mr. Patullo testified that they never knew 4x4s were being used.

Reasons for Judgment

[23] The Justice of the Peace held that the offence before the court required the Crown to prove that the worker was not using tools or materials properly and that avenue building corporation failed to ensure that the safety measures and procedures were carried out according to the Occupational Health and Safety regulations. The Justice of the Peace further held that once this was proven, the burden switched to the defence to raise a valid defence which included that the corporation took steps to educate its employees to make sure the employee complied with the act. She stated that the corporation, to rely on the defence of due diligence, had to have taken reasonable steps to avoid the event.

[24] Ultimately, the Justice of the Peace concluded that Mr. Da Silva was hurt at work when the 4x4 he was using to move a wall form broke. She held that Mr. Da Silva was trained to use a pry bar only and not a 4x4 and that he had decided on his own to use the 4x4 on February 12, 2013. She further found, that Mr. Da Silva had the freedom to use this tool because the corporation allowed staff to use their own discretion in deciding what tools to use at work. Moreover, she found there was inadequate supervision as Mr. Da Silva had used a 4x4 multiple times at work. She further held that the failure to have a written procedure for how to move wall forms was also problematic.

Issues Raised on Appeal

[25] The Appellant raises a number of grounds of appeal:

a) that the trial Judge misapprehended the evidence about what tool was used by Mr. Da Silva to move the wall form and about whether there was training in relation to using a pry bar when moving a wall form;

b) that the trial Judge failed to address the charge that the corporation was facing and therefore failed to consider salient factors;

c) that the trial judge erred by ignoring un-contradicted expert evidence;

d) that the trial judge's finding that due diligence was not met was unreasonable.

Analysis

Standard of Review

[26] It is well recognized that a reviewing court should only interfere with findings of trial judges if there is an error in law or if the findings made by the trial judge were unreasonable and not supported by the evidence. Where an error of law is alleged, the standard of review is correctness. The standard of review for questions of mixed fact and law is palpable and overriding error (see R. v. Stelco Inc.). That is a trial Judge's findings of fact must be given deference and only interfered with where there is a clearly identified error and that error is shown to have affected the result. The trial Judge, having heard the evidence first hand and seeing the manner in which the witness testified is in a far better position to assess the credibility of the witnesses and make findings of fact.

1. Did the Trial Judge Misapprehend the Evidence?

a) A 2x4 versus a 4x4

[27] The evidence at trial was clear and uncontradicted. Mr. Da Silva used a 12 foot long 4x4 on February 12, 2013 to move the wall form and it was this 4x4 that broke. Nonetheless, the trial Judge, throughout her reasons for judgment, stated that Mr. Da Silva used a 2x4 to move the wall form and that it was the 2x4 that broke. Crown counsel conceded that this was clearly an error of fact. The issue is whether the Appellant has demonstrated that this error of fact affected the verdict. The Respondent argued that it did not.

[28] I agree with the Respondent that this error of fact could not have reasonably affected the verdict. In my view, when the reasons are read as a whole it is clear to me that the trial judge's reference to the wooden plank that broke as 2x4 instead of a 4x4 merely misspoke and used the wrong term as opposed to misunderstanding the nature of the tool used by Mr. Da Silva when he was hurt.

[29] I reach this conclusion for a number of reasons. Firstly, there was no evidence at trial about a 2x4. There was also no evidence of the relative strengths of a 2x4 versus a 4x4 or that they might be capable of different actions when used as a tool. The only wooden tool referenced at trial was a 4x4. Secondly, the trial judge only mentioned 2x4s in her judgment. At no point did she refer to a 4x4 or draw any comparison between the two types of wooden planks. Thirdly, there is no basis, on the record before the court, to conclude that the trial Judge would have known that there was a difference between a 2x4 and a 4x4. While it may be self-evident to some that a 4x4 is stronger than a 2x4, it may not have registered with the trial Judge. Finally, the issue at trial did not focus on the general utility of a 2x4 as compared to a 4x4, it focused on the use of pry bar as opposed to a wooden plank. When I consider these realities, I am satisfied that the trial judge merely mis-spoke when she consistently referred to the tool used by Mr. Da Silva as a 2x4 instead of a 4x4 and that this error of fact could not reasonably have affected the verdict.

b) Whether the Staff Had Been Trained to Use a Pry Bar to Move a Wall Form

[30] The main defence argument at trial was that the staff were all trained to use a pry bar to move a wall form and that despite this training, Mr. Da Silva, unbeknownst to the owners of the corporation, used a 4x4 on the day of the accident. The Appellant argued at trial, that the defence of due diligence was met because the staff had been properly trained and were properly supervised but that Mr. Da Silva decided on his own to use the 4x4 that broke.

[31] The evidence at trial on this point was uncontradicted and clear. All the witnesses testified that the workers were trained to use a pry bar when moving wall forms. In her reasons for judgment, when reviewing the evidence, the trial judge stated on more than one occasion that Mr. Da Silva was trained to use a pry bar to move wall forms. She was clearly alive to this uncontradicted evidence. Nonetheless at page 14 of her reasons she stated:

The records of training, Exhibit 15, have been submitted by Avenue Building Corporation to demonstrate that the corporation conducted safety measure training on a regular basis pertaining to a number of topics; however, there's no evidence to show that the employees were specifically told to use a pry bar to reposition the wall form and that is prior to February 12, 2013. It leaves the court to find that even though the corporation may not have trained its employees to use a two by four but they did accept that at the discretion of its employees to find adjustments. In a project which is a big construction project such as what Avenue Road Building Corporation was undertaking, the Act has to be very, strictly follows. And the purpose of the Act is to make sure that all the measures are strictly adhered to so that the workers are protected.

[32] In assessing this ground of appeal, it is important to remember that reviewing courts are not to dissect every single utterance made in a ruling in a vacuum. Instead, the court is required to consider the judgment as a whole. It is unfortunate that the trial judge chose to state in this passage that there was no evidence to show that the employees were specifically told to use a pry bar to reposition the wall form. They clearly were. This passage was only, however, dealing with the written training material and the fact that there was no mention in the written training material that workers should use a pry bar when moving wall forms. It is clear to me, when I look at the entire ruling, that the Justice of the Peace was well aware that the staff were verbally trained to use a pry and that in this passage, despite the language used, the trial Judge was only referencing written training material. I therefore find that despite the unfortunate wording in the passage noted above, the trial judge did not misapprehend the evidence on this point.

2. Did the Trial Judge Misunderstand the Offence Charged?

[33] Avenue Building Corporation was charged with violating section 37(1) of the construction project regulations under the Occupational Health and Safety Act. Section 37(1) of the regulations states that it is an offence for an employer to fail to ensure that equipment being moved was moved in a manner that did not endanger the worker. The Appellant argued on appeal that the trial Judge erred by failing to appreciate the nature of the charge before the court. The Respondent argued that while the trial judge never properly articulated the charge that Avenue Building Corporation was facing, she was not required to do so because the actus reus of the offence was so easily made out and was not really even in issue at trial. The Respondent argued that instead, the trial judge focused on what was really in issue – due diligence - and as such there can be no finding that the trial judge failed to appreciate and consider the charge that the Appellant was facing.

[34] The Justice of the Peace started off her ruling by outlining the charge before the court. She stated:

In this matter, Avenue Building Corporation as an employer is charged for the offence of failing as an employer to ensure that the measures and procedures prescribed by section 37(1) of the Ontario Regulations as amended under the Occupational Health and Safety that those procedures were not carried out according to the reasons.

Later in her reasons, after reviewing some of the evidence presented at trial, the trial judge repeats the offence and outlines what the Crown has to prove. She stated at page 9:

In this particular situation, the Crown has to prove beyond a reasonable doubt that the worker was not using tools or materials properly and that Avenue Road building corporation committed the prohibited act, i.e. failed to ensure that the safety measures and procedures were carried out according to the Occupational Health and Safety regulations.

The trial Judge went on to state that once this is proven, the burden shifts to the defendant to raise a valid defence, which would include due diligence.

[35] In addressing this ground of appeal, counsel for the Respondent acknowledged that the trial Judge's reference to the charge before the court was not that clear. She argued however, that despite some deficiencies in the reasons, they were not sufficiently problematic to overturn the conviction. To that end, the Respondent noted that a) judges are presumed to know the law; b) judges do not have to provide reasons; c) the issues in the case at bar were not complex and easily satisfied; and, d) if you really sift through the reasons, it becomes evident that the trial judge made findings of fact that when applied to the proper section amount to proof beyond a reasonable doubt that the offence was committed.

[36] The first issue to decide is whether the trial Judge actually erred in failing to address the proper charge. I agree with the Appellant that at no point during her reasons did the trial Judge ever properly refer to the actual charged faced by the Corporation. I am mindful that the trial Judge did correctly name the section under which the Appellant was charged, which in many cases would be sufficient. It is my view, however, that it is not sufficient in the case at bar. This is because in addition to failing to specify the charge, the trial judges referred to the charge incorrectly. The corporation was not charged with the broad offence of failing to ensure that safety measures and procedures were not carried out in accordance with the Act. Nor was the corporation charged that the "worker was not using the tools or material properly". Instead the corporation was charged with the narrow offence of failing to ensure that material or equipment was stored or moved in a manner that did not endanger a worker.

[37] Having found that the trial judge erred in her statement of the offence, I must now consider whether this error could reasonably have affected the verdict.

[38] I can quickly address some of the Respondent's arguments outlined above. Firstly, I agree that trial judges are presumed to know the law. Great deference ought to be applied to the trial judge's reasons for judgment and if there is a way to read the reasons such that the reasons are consistent with known legal principles, then the benefit should be given to the trial Judges. Justices of the Peace work in busy courts. Their case loads are heavy and they do not have the luxury to spend countless hours drafting perfect reasons. This is why reviewing courts ought not dissect every word in a trial Judge's decision. Instead, the reviewing court should look at the reasons as a whole to see if they display an error of law or an error of mixed fact and law.

[39] I disagree with the Respondent, however, that trial judges do not have a duty to give any reasons at all. While the judge need not give exhaustive and lengthy reasons, nor must the trial judge address every issue raised by the defence or demonstrate that she knows all aspects of the law and the evidence, there is a duty on a trial judge to provide sufficient reasons so that the parties understand the reason for the outcome (R. v. Sheppard, 2000 BCCA 174). Moreover, having decided to give reasons, where the reasons display an error of law, the error cannot be ignored merely because the trial Judge did not have to provide reasons.

[40] The more compelling argument made by the Respondent is that the actus reus of the offence was not really in issue at trial and as such the trial judge was not required to break down all the essential elements of the offence. In the case at bar, the actus reus was made out once Mr. Da Silva testified that he broke his leg while moving the wall form with the 4x4. There was no issue that Mr. Da Silva broke his leg while moving a wall form while at work for Avenue Building Corporation. Given that this was not an issue at trial, the trial judge had no real reason to articulate the charge and review the evidence in support of the actus reus. Instead, the judge properly focused on what was in issue, due diligence.

[41] On appeal, the Appellant argued that the actus reus required something more than Mr. Da Silva being hurt. Counsel, on behalf the Appellant argued that as part of the actus reus, the Justice of the Peace had to decide whether or not a 4x4 was a suitable lever to be using. I reject this argument. At trial, Mr. James Patulla testified at length that a 4x4 was an appropriate tool and HAD he known that it was being used, he would have allowed his employees to use a 4x4. Despite this evidence, trial counsel made no reference to this during his submissions. At no point did counsel for the corporation argue that the 4x4 was an appropriate tool and as such the actus reus was not made out. Instead, the focus was on whether the corporation knew Mr. Da Silva was using a 4x4 instead of a pry bar and whether or not they ought to have known he was using a 4x4 instead of a pry bar. It is not open to the Appellant to argue on appeal that the trial Judge erred in failing to consider a potential issue when that issue was never raised at trial.

[42] Were the only issue before the court the actus reus of the offence, I would completely agree with the Respondent that the failure to properly articulate the charge is not a reversible error in this case. In my view, however, the failure of the trial Judge to turn her mind to the correct charge in the case at bar, is also relevant to the issue of due diligence, which was the main defence at trial. In light of this, I am unable to conclude that the error made the trial judge in referencing the charge before the court could not have reasonably affected the verdict.

[43] In my view, it is impossible to fairly address the issue of due diligence and reasonable precaution if the court is focussing on the wrong actus reus. In deciding if the defence of due diligence was made out, the court was required to consider the specific act of failing to ensure that Mr. Da Silva was not endangered when he moved materials at work. Instead the court focused on a broader issue, the general safety at the place of work because she focused on whether the corporation failed to ensure that safety measures and procedures were carried out in compliance with the act. The Justice of the Peace also considered the defence of due diligence in the context of the more narrow act of failing to ensure that the employees used the tools properly. This was not, however, the charge faced by the corporation. The analysis of what acts make out the defence of due diligence as it applies to this alternate charge is different in some respects than the analysis of what steps would make out the defence of due diligence on the charge the corporation was actually facing. I therefore cannot conclude that had the proper analysis been conducted, the verdict would have been the same.

[44] As I read the reasons for judgment, I am mindful that many of the factors the court considered under due diligence to the broader offence of failing to ensure that the safety measures and procedures are carried out or to the alternate offence of failing to ensure the workers are using the tools properly are equally relevant to the charge the corporation was actually facing and may be sufficient to find that due diligence was not made out. Having said that, since the due diligence requirement was being considered either in relation to a broader offence or a different offence, I am not able to conclude that a finding of guilt was a foregone conclusion.

[45] For example, the trial judge made findings of fact that there was inappropriate supervision at the work site because Mr. Da Silva had used a 4x4 to move wall forms before. Inadequate supervision is clearly relevant in assessing the due diligence of a corporation in general. It is also relevant in assessing whether the corporation failed to ensure that employees used tools properly. It may not be as relevant to the issue of whether the corporation was diligent in ensuring employees were not put in danger, where a trusted and trained specialist like a journeyman carpenter chose to use a tool not specifically authorized by the corporation to do its job.

[46] Another example relates to the failure of the corporation to include in their training manual that a pry bar must be used when moving wall forms. While this may have been relevant to broader safety and compliance issues, it is difficult to see the import of this fact in relation to the charge before the court. There was no dispute that Mr. Da Silva was trained to use a pry bar and that he knew this. It is difficult to understand how the failure of the corporation to put this in writing, when the employees clearly knew they were to use a pry bar, supports the conclusion that the corporation was not diligent in ensuring that tools were used in a manner that did not endanger the safety of the employees.

[47] In fairness to the Justice of the Peace, who wrote extensive reasons and clearly considered the evidence, it should be noted that arguably some of the confusion about the charge before the court arises from the wording of the information, which stated that the corporation failed "to ensure that the measures and procedures prescribed by s.37(1) of Ontario Regulation 213-91/91, as amended were carried out at a workplace locted at 2157 Lakeshore Boulevard West, Toronto, contrary to s.25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990 c.0.1 as amended, contrary to the Occuprational Safety Act, s.25(1) (c)." To understand what is really being alleged, one has to look at the regulation itself. It is only then that it becomes clear that the corporation was charged with failing to ensure that equipment being moved was moved in a manner that did not endanger a worker.

[48] When I consider the reasons as a whole, I agree with the Appellant that the trial Judge misapprehended the charge before the court and failed to properly consider the evidence as it related to the specific charge. It is also my view, that this error could have reasonably affected the verdict. I would therefore allow the appeal on this ground.

[49] Counsel for the Appellant argued that the Justice of the Peace made additional errors when addressing the charge before the court namely that the trial Judge failed to turn her mind to due diligence but instead focussed on other charges she found the Appellant to have committed and that she even had the name of the company wrong. With respect to the name of the company, on one occasion, the trial judge misspoke and referred to the company as Avenue Road Construction. This was an oral ruling; it is clear that the judge knew the name of the corporation and just misspoke. In relation to the allegation that the trial judge failed to consider due diligence, I disagree. The trial judge did not have to specifically state "and now I am turning to due diligence". It is obvious from the structure of her ruling that from page 10 onwards she was focussing on the issue of due diligence. When I look at reasons as a whole, I am satisfied that the trial judge did turn her mind to the defence of due diligence albeit, not in relation to the proper actus reus.

3. Did the Trial Judge Err by Disregarding Uncontradicted Expert Evidence?

[50] The Appellant argued that the trial Judge improperly disregarded the evidence of James Patullo in relation to whether or not a 4x4 was a suitable tool to use to adjust a wall form. I reject this ground of appeal. Firstly, I note this evidence was not uncontradicted. Mr. Kassam, the health and safety employee, while not qualified as an expert, testified that a 4x4 should not be used to move a wall form. Secondly, while James Patullo testified about the fact that in his opinion a 4x4 was an appropriate tool, this issue was not raised in submission by counsel for the Appellant at trial such that the trial Judge could understand the importance of this evidence. It was only on appeal that counsel argued that a potential defence to the charge was that even though the 4x4 broke on February 12, 2013, it was nonetheless a suitable tool and as such, the actus reus is not made out or, at the very least, the defence of due diligence was made out.

[51] In light of this, it was appropriate for the trial Judge to make nominal reference to this evidence in her judgment.

4. Was the Verdict Unreasonable?

[52] Counsel for the Appellant argued that the verdict in the case at bar was unreasonable and as such an acquittal should be entered. Respectfully, I disagree. I have already found that the trial Judge erred in relation to the consideration of the appropriate charge. In my view, this error should lead to a new trial and not an acquittal so that a trial Judge can properly consider the evidence as it relates the offence charged and decide whether or not the offence is made out. When I look at all the evidence and the findings of fact made by the trial Judge, this is not a case where an acquittal is inevitable. As a result, in my view, a new trial should be ordered.

[53] In light of these reasons, the conviction is overturned and a new trial is ordered.

Released: April 28, 2016

Justice Mara Greene