R v. Cobra Float Service Inc.

Court Information

Court: Ontario Court of Justice

Date: November 15, 2017

Citation: 2017 ONCJ 763

File Number: Information # 6477

Parties

Between:

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

(Prosecution)

-AND-

Cobra Float Service Inc.

(Defendant)

Judicial Officer

Heard Before: Gerry Manno, Justice of the Peace

Hearing Dates: October 12, 13 & 19, 2016 and June 8th & 14th, 2017

Reasons for Judgment Released: November 15th, 2017

Counsel

Counsel for the Defendant: E.J. Battiston

Counsel for the Crown (Ministry of Labour): W. Wilson

Background & Charges Before the Court

The Charge

Cobra Float Services Inc., at 450 Bowes Road, Concord, Ontario is charged on or about the 25th day of May 2013, at the City of Brampton, in the Central West Region, in the Province of Ontario, that they did commit the offence of failing as an employer to ensure that measures and procedures prescribed by Section 37(1) of Ontario Regulation 213/91 were carried out in a workplace located at or near James Potter Road West of Creditview Road, Brampton, contrary to Section 25 (1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, chapter one, as amended.

Particulars: a curb machine was moved at a project in a manner that endangered a worker. A worker, Luis Pinto, was killed.

Background

Cobra Float (hereinafter referred to as "Cobra" or the "defendant") was under contract to deliver a curb making machine to a subdivision being built in Brampton on that fateful date, time and place. A flatbed truck and trailer was used to load that curb machine and transport it to the site by the company's employee, Mr. L. Pinto. Once at the site, Mr. Pinto was also responsible for unloading that curb machine off of the flatbed trailer so that it could begin work extruding curbs which would form part of a subdivision being built at that location. On a sunny morning, when the ground was dry and level (flat), an accident occurred. Though there were no witnesses to the accident, it appears that whilst in the process of unloading that curb machine, it tipped over onto the unfortunate Mr. Pinto, pinning him under that machine. He later succumbed to his injuries.

By way of background, the subdivision site was owned by a company by the name of Sandyshores who contracted with Gulfview Contracting Ltd. to build out the site, who in turn, subcontracted to Quattro Co. (the owner and ultimate operator of the curb machine in question) who then subcontracts the delivery and pick-up of this curb machine with Cobra Float, whose responsibility it is to load and unload the curb machine onto flatbed trucks, transport it to and from the subject site, then pick it up once it has performed its intended function. This particular curb machine had what is referred to as an 'offset' wheel or tire which sits between the two normally placed wheels. The flatbed trailer and truck that transports such a machine is not rectangular as most flatbeds are. This trailer had a space between the two tires that would permit the trailer to be raised and attached to a truck. Such a connection is referred to as a 'gooseneck' connection.

Following the accident, an investigation was launched and spearheaded by the Ministry of Labour (hereinafter referred to the "MOL") and the charge under the Occupational Health & Safety Act was laid (hereinafter referred to as the "OHSA") under 25 (1) (c) of that Act. That charge was expressed in Information # 6477 sworn/commenced on May 23rd, 2014.

There had been two Judicial Pre-trials conducted in hopes of narrowing the issues and evidence wherein it was decided that a six day trial was needed to hear the evidence (only five days were used to complete matters).

Following the defendant's application for a non-suit verdict, and after due consideration, the court dismissed this motion with written reasons delivered and filed on June 8, 2017.

This constitutes the court's decision of this strict liability offence, having heard and considered all of the evidence tendered on the scheduled trial dates.

List of Exhibits Tendered During Trial

Exhibit 1 – Agreed Statement of Fact
Exhibit 2 – Statement of Death (Mr. Pinto)
Exhibit 3 – Corporation Profile Report
Exhibit 4 – Various Photos
Exhibit 5 – DVD of flatbed truck and equipment arriving on site
Exhibit 6 – Package of Documents
Exhibit 7 – 67(1) Certificate
Exhibit 8 – Form 1000
Exhibit 9 – Cobra Safety Policy
Exhibit 10 – M.O.L. – Notice of Accident
Exhibit 11 - Form 7 – employment report
Exhibit 12 - Domson Engineering Report
Exhibit 13 - Curb Machine Owner's Manual
Exhibit 14 - Cobra – O.H.S.A. Policy
Exhibit 15 - Cobra – unloading procedures
Exhibit 16 - Schematic Diagram
Exhibit 17 - Cobra Trailer Schedule
Exhibit 18 - Cobra Trailer Log

Voir Dire Exhibits:

1 - CV of Medhat Abskharoun (also Trial Exhibit 19)
2 - Engineer's Report (also Trial Exhibit 20)

Witness List

Crown Witness #1 – Mr. Karim Kassam
Crown Witness #2 – Mr. Medhat Abskharoun
Crown Witness #3 – Mr. V. Vieira
Witness #4 – Mr. Martellacci
Witness #5 – Mr. Conetta
Witness #6 – Mr. F. Velocci

Applicable Statutes, Common Law Citations & Authored Materials Consulted

Legislation:

Authored Materials:

"Time to regulate occupational health & safety professionals" The Toronto Star (September 4, 2017).

Common Law:

Decision of the Court

The actus reus has been proven beyond a reasonable doubt, however, the defence of due diligence has been successfully established by the Defendant (on a balance of probabilities basis) and accordingly, the Defendant is not culpable in the eyes of this court. As such, the charges before this court shall be dismissed.

Crown (MOL) Position

The Defendant's Violation

The defendant violated the Occupational Health and Safety Act on May 25, 2013, when the defendant failed to ensure that equipment at a project was moved in a manner that did not endanger a worker, as is required by section 37 of the Regulation governing construction projects. In particular, a curb machine was moved at a project in a manner that endangered a worker. A worker, Luis Pinto, was killed.

Employment and Incident

On May 25, 2013, Luis Pinto was employed by the defendant as a transport driver. He was fatally injured in a workplace incident while he was unloading a piece of heavy equipment, known as a curb machine, from a float trailer. He was crushed when the curb machine tipped over onto its side.

Proof of Actus Reus

The actus reus is proven by the undisputed evidence that the curb machine was moved in a manner that killed Mr. Pinto. On this issue, there are no facts in dispute, and the law is clear: the Crown is not required to prove how or why the curb machine tipped over. The potential causes of the event are properly considered only in assessing the defence of due diligence.

Failure of Due Diligence Defence

There is no viable due diligence defence on the evidence heard at trial. The defendant did not take all reasonable care to avoid a curb machine tipping onto a worker while it was being offloaded from a float trailer. While a defendant is not required to prove the precise cause of the accident before invoking the defence of due diligence, the defendant must show that it took all reasonable care to avoid any foreseeable cause.

Contributing Factors

Contributing factors may have included:

The failure to have a secure ramp supporting all four wheels of the curb machine as it travelled from the float trailer to the ground, or the failure to use an adequate substitute for a fixed ramp
The approximate 23" elevation of the curb machine
The fact that the controls were found on "auto" rather than on "manual"

Failure to Take Reasonable Care

The defence of due diligence cannot succeed. The defendant failed to take all reasonable care in relation to each and every one of these potential causes or contributing factors.

On the Issue of a Secure Ramp

The facts clearly establish that the defendant failed to take all reasonable care to ensure that an appropriate ramp was used:

(a) The defendant assigned Mr. Pinto to transport a machine with an offset wheel, using a float trailer that did not have a ramp across the width of the trailer that would accommodate the offset wheel;

(b) The practice of using a piece of wood was an inadequate substitute for a ramp, because the offset wheel drops and tilts the machine (as seen even in the defence video, Exhibit 25), because the piece of wood is not sloped and does not provide a continuous surface for the wheel to travel;

(d) The piece of wood must be precisely placed, is narrower than the tire, and the wood may move or tip if the wheel does not hit it squarely;

(e) The piece of wood is not designed to carry the load of the curb machine;

(f) Even if a piece of wood were an adequate substitute for a ramp (which the Crown strongly denies), the defendant failed to ensure that Mr. Pinto used a piece of wood to unload the curb machine;

(g) The defendant was adamant that it is necessary to use the piece of wood, but the defendant did not include this in its written unloading procedures; did not train Mr. Pinto to use the piece of wood; and took no steps whatsoever to enforce the use of a piece of wood in unloading a curb machine.

On the Issue of the Elevated Height

The defendant failed to take all reasonable care to ensure that Mr. Pinto did not inappropriately raise the machine's height:

(a) The machine must be elevated to some degree to clear the ramp, and even more so when a wood form is attached to the bottom of the machine, which was the case here.

(b) The manual advising not to raise the machine more than 12" was not provided to Mr. Pinto.

(c) There is no evidence that Mr. Pinto was warned of the dangers of elevating the machine or supervised to ensure that he understood and followed this direction.

On the Issue of the Controls Being Found on "Auto"

The defendant did not take all reasonable care to ensure that Mr. Pinto unloaded the machine in manual mode:

(a) The defendant provided no training whatsoever in the operation of the curb machine.

(b) A curb machine may be left in "auto" by the operator before the transport driver is required to move the machine, and there is no suggestion that Mr. Pinto was informed of this (or the importance of resetting the controls to "manual").

Prosecutor's Summary of the Facts

Employment and Incident

Luis Pinto had been employed by the defendant as a transport driver for approximately 22 months before he was killed on May 25, 2013. On May 25, Mr. Pinto was tasked with delivering a curb machine to a construction site. While offloading the curb machine from a float trailer, the machine tipped and fell onto its left side. Mr. Pinto was crushed.

Previous Moves of the Curb Machine

The curb machine involved in the incident was owned by Quattro Construction. In response to an Order issued by the Inspector, the defendant provided information that Mr. Pinto had delivered the same or a similar curb machine four times before without incident. At trial, the defendant introduced evidence that Mr. Pinto had moved a Quattro curb machine 27 times, and that a Quattro curb machine was moved 66 times by a transport driver other than Mr. Pinto.

The Float Trailer Configuration

The float trailer provided to Mr. Pinto was a trailer with a "gooseneck". This means that the front of the trailer is attached to the truck. To drive equipment onto or off the trailer, the trailer must be detached from the truck. Then, after the truck is driven away, two parallel ramps are available at the front of the trailer. Each ramp is 28 inches wide. A machine can be driven onto or off the trailer using these ramps. There is an approximately 30" gap between the two ramps: in this particular type of float trailer, the ramp does not extend across the entire width of the trailer.

The Offset Wheel Challenge

The curb machine is one of the trickiest machines to load or offload from a float trailer. This is because one of its four wheels is "offset". In other words, one rear wheel is not parallel with the wheel in front of it, but is found in approximately the middle of the machine. (The two front tires were 70 inches apart, and the two rear tires were 39 inches apart.) On this float trailer, the offset wheel cannot travel on one of the ramps. It travels onto or off the machine in the area of the gap between the two ramps.

Machine Elevation and Tipping Point

The curb machine itself can be raised and lowered. The higher the elevation of the machine, the more prone it would be to tipping; or, in other words, the higher the machine, the less angle needed to pass the "tipping point". Once the centre of gravity goes beyond the "tipping point", then the machine will tip and fall over.

Elevation During Transport and Unloading

During transport on the float trailer, the curb machine is lowered to its lowest position. The machine does need to be elevated to some degree to offload it from the float trailer. This is because it needs to clear the ramp. Unlike a curb machine shown in defendant's videos in court, the curb machine involved in the incident had a wood form attached to its body. This means that the machine would need to be elevated to an even higher position to clear the ramp than a machine without a wood form attached to it. Mr. Martellacci, the owner of the defendant corporation, estimated that the machine in the video (without the wood form attached) needed to be raised 13 or 14 inches for unloading.

The Owner's Manual and Elevation Limits

Quattro Construction provided the Ministry of Labour Inspector with the owner's manual for the machine. The manual says that the curb machine should not be moved when it is elevated more than 12 inches. Mr. Pinto was not provided with the manual: he was expected to know this from previous experience. It did not appear that other workers knew this, as they had not seen the manual, and estimated that the curb machine needed to be raised somewhat higher than 12 inches, even without the wood form attachment. As above, Mr. Martellacci believed the machine (without the wood form) needed to be raised 13 or 14 inches.

Machine Position Upon Arrival

On the surveillance video showing Mr. Pinto driving the float trailer onto the site, it appears that the curb machine is sitting low on the trailer, that is, it did not appear to be elevated while it was being driven to the site, before unloading.

Elevation at the Scene

From measurements taken after the incident, the lowest part of the curb machine – the bottom of the wood form attached to the machine -- was approximately 22 to 23 inches from the ground. This elevation meant that the angle required to tip the machine would be much less. Also, because the offset wheel is close to the middle of the machine at the centre of gravity, this would further decrease the angle required to tip the machine. According to the Ministry of Labour Engineer, the height of approximately 22 to 23 inches was "definitely a significant factor". A curb machine operator employed by Quattro Construction, who had loaded a curb machine onto a trailer once or twice, testified he would be concerned about elevating the machine to 23 inches for loading because the machine would not be properly stabilized. A worker employed by the defendant testified that this was too great a height.

Auto and Manual Controls

The curb machine also has "auto" and "manual" controls that relate to the elevation of the machine. When set on "auto", a machine may self-adjust the height of one set of wheels. This could decrease the stability of the machine.

Complexity of Control Settings

There is some complexity to the "auto" and "manual" settings. A worker who was employed by Quattro Construction as a curb machine operator described the operation of fixed and removable sensors. Another worker described that the machine may be already set on "auto" when the defendant's worker arrives to drive it onto the float trailer and that the driver must change the controls to "manual".

Controls Found on Auto

When examined after the incident, it was observed that all settings on the curb machine were set to "auto": the left front elevation, left rear elevation, and right side elevation. This could have caused the machine to increase its elevation, if the machine began to self-level as it traveled off the float trailer. This movement and the raised elevation would increase the risk of tipping.

Differential in Wheel Heights

Measurements were taken of the curb machine after the incident, while it was still tipped over and before it was moved to an upright position. There was a 6 ½ inch difference in the heights of the two rear wheels: the offset wheel was lower than the right wheel. This would also have a very significant effect on tipping. The fact that the controls were set to "auto" could provide one explanation for the difference in the wheels' height.

Machine Maintenance and Condition

After the incident, the curb machine remained securely on site until it was transported offsite approximately one week after the event. The Ministry of Labour Inspector issued an Order requiring the machine owner to have the machine tested before it was put back into service. The curb machine had been serviced in April 2013, the month before the incident, by Stronco Equipment. The curb operator who used this machine had not experienced any malfunctioning of the sensors for auto-levelling. The missing lever on the curb machine was not an indication of poor maintenance, as it had been deliberately removed for operational reasons.

Engineer's Opinion on Cause

In the Engineer's opinion, the offset tire fell into the gap between the two ramps while it was being driven from the float trailer to the ground, and tipped over. The failure to have a ramp underneath the offset wheels and the elevation of the machine would be contributing factors.

Trailer Adequacy and Solutions

Furthermore, in the Engineer's opinion, this float trailer was not adequate for loading or unloading a curb machine. There are trailers where the ramp extends across the entire width of the trailer, which would provide a point of continuous contact for the offset wheel. Similarly, a curb machine could be loaded or unloaded safely from this very float trailer, with the addition of a ramp placed into the gap that could withstand the load of the curb machine and was secured in place, at the appropriate angle.

Tilting Motion in Defence Videos

In the defence videos demonstrating a curb machine being unloaded from the trailer involved in the incident, the curb machine noticeably tilts towards the operator's side as the offset wheel drops into the gap and onto the piece of wood.

Wooden Block Usage by Quattro Operator

Vitor Vieira, a curb machine operator who worked for Quattro Construction (which owned the curb machine involved in the incident), had loaded the curb machine onto a float trailer once or twice. In doing so, he inserted a block of wood into the gap between the ramps. He did not use a rectangular piece of wood similar to that described by the defendant's workers. Rather, he used a wedge-shaped block of wood which was approximately 10 inches high at the large end and approximately three inches high at the small end. This wedge-shaped block of wood had been provided by the float driver.

Defendant's Wooden Block Practice

Mr. Martellacci and worker witnesses insisted that a piece of wood must be used to load or unload a curb machine safely. The piece of wood was described as "the essential equipment" for moving the curb machine. However, much was left to the driver's discretion: each driver could decide on their own what piece of wood was required, if any, depending on the machine being transported. In the demonstration videos, an approximately 6" wide piece of wood was placed into the 30" gap, leaving a small gap on one side and a large gap on the other side. All witnesses associated with the defendant approved of this piece of wood as adequate for unloading a curb machine.

Description of Wooden Block

Mr. Martellacci described the piece of wood as acting as a ramp. Although referred to as a "wooden block", it is not really a block, but something that more resembles a railway tie. The pieces of wood shown in the videos were six inches by six or eight inches, and approximately 18 to 24 inches long. The wood was narrower than the tire of the curb machine. The piece of wood is rectangular, not shaped into a wedge. According to workers employed by the defendant, this is the type of piece of wood they would typically use when unloading a curb machine.

Defendant's Approach to Wooden Block Usage

Mr. Martellacci testified that it was not practical to fill the entire 30 inch gap between the ramps; he also maintained that this was not necessary, as long as the offset wheel comes down "straight on to the block of wood that acts as the ramp". Also, a driver "coulda filled the whole gap with lumber if he wanted to", although this would not provide a sloped surface for the wheel's travel. The defendant did not provide any instruction to drivers to fill the entire gap with pieces of wood or to provide a sloped surface. The defendant did not provide workers with a solid ramp to fit into the gap. The defendant specifically approved of the normal practice of putting an unsecured piece of wood into the gap that left a large empty space on at least one side, and that left the offset wheel to drop onto the wood, rather than roll down a ramp.

Safety Policy Inadequacy

The "Cobra Float Service Incorporated Safety Policy" does not provide guidance about how to load or offload heavy equipment. Each driver was given a copy of the policy and was supposed to read it.

Written Loading and Unloading Procedures

In addition to the safety policy, the defendant had a written loading and offloading procedure. There is nothing in the procedure that addresses the particular measures that need to be taken when transporting a curb machine. The written procedure is silent on the issue of using a piece of wood as a substitute for a ramp.

Absence of Wooden Block at Scene

No witness had seen any piece of wood between the ramps at the scene of the accident. While there were pieces of wood on the trailer, there was no evidence that Mr. Pinto had placed a piece of wood into the gap before the incident. Of course, first responders had been involved with the scene before it was viewed by any of the witnesses at trial.

Spotter Requirements

While the written procedure for loading and unloading was silent on the use of a substitute for a ramp, it does specifically contemplate that a spotter may be required. Mr. Martellacci would not expect Mr. Pinto to have used a spotter for this task. Mr. Martellacci did not have a recollection of training Mr. Pinto on working with a spotter. It would be left to the driver's judgment and discretion whether to use a spotter and a driver could ask "whoever's around" to act as a signaler when unloading a piece of heavy equipment. Mr. Vieira had never used a spotter when unloading the curb machine. A Quattro Construction worker had loaded a curb machine onto a float trailer once or twice, without using a signaler and had never seen a transport driver using a signaler.

Informal Safety Discussions

Mr. Martellacci testified about informal discussions amongst the drivers as part of implementing the "regular safety meetings" mandated by the safety policy. There was no evidence from any worker employed by the defendant that this actually occurred. One worker specifically testified that he would just go home when the job was done, and did not engage in safety chats with a co-worker.

Safety Meetings

The defendant also tried to have safety meetings every three to four months. Although the safety meetings consisted of the entirety of the "training" provided to Mr. Pinto, as detailed further below, the defendant did not produce any records of the safety meetings. Mr. Martellacci could not provide the date of the first meeting Mr. Pinto attended. Mr. Martellacci did not know of the dates of any of the safety meetings. One worker, Mr. Vieira, described safety meetings as usually taking place every six months, and recalled "videos of like WHMIS training and stuff like that". Another worker testified that meetings were held every three months.

Safety and Compliance Consultant

The defendant employed a safety and compliance consultant. He helped with training, would keep the defendant compliant with the Ministry of Transportation, dealt with traffic tickets, and maintained the defendant's Commercial Vehicle Operation Rating Registration in good standing. This safety consultant worked for the defendant approximately two or three days every couple of months. He did not attend every safety meeting. He dealt with the Highway Traffic Act, not with the Occupational Health and Safety Act.

Lack of Formal Training

The defendant did not train Mr. Pinto after he was hired. The defendant relied on his prior work experience. Any "training" was provided in the context of safety meetings, outlined above. Mr. Martellacci testified that one of the senior drivers would have spent a day with Mr. Pinto after his hire to see that Mr. Pinto could drive properly and that "he knew what he was doing" when loading and unloading equipment. Mr. Martellacci testified that Mr. Pinto told him that he could move curb machines, and Mr. Martellacci watched Mr. Pinto move a curb machine the first time he was asked to perform this task. Mr. Martellacci recalled little about this, and could not confirm whether he watched Mr. Pinto operate one of the Quattro curb machines or a different curb machine; Mr. Martellacci could not recall the date (it was "shortly after" Mr. Pinto began work), and confirmed that the defendant did not follow up in any way or provide any specific training.

Training of Other Workers

It was apparent that the defendant did not provide training to any of its workers regarding safe unloading of the curb machine. Another worker employed by the defendant, Gary Vieira, had moved the curb machine involved in the incident 12 times. The operator of the curb machine, who worked for Quattro Construction, showed him how to move it, the first time, "And from there on it was all pretty much hands on experience". He had never been shown a manual for the machine. The defendant did not participate in the instruction provided by the Quattro worker or check up on the information their own worker received.

Self-Taught Workers

Another worker, Michele Conetta, testified proudly that he taught himself how to load and unload a curb machine: "it was all self-taught".

Lack of Hazard Awareness Training

Mr. Martellacci was asked what steps the defendant took to ensure that Mr. Pinto was advised of the actual or potential hazard of unloading a curb machine with an offset wheel:

Q. What did the company do, again if anything, to make sure that Mr. Pinto was aware of the hazards, was aware of those? Was there anything beyond his experience and watching him the one time you spoke about?

A. What did we do that would make him aware? Everything is dangerous in life.

Q. So there was nothing specific?

A. No, he was trained. He was already experienced. He had probably a little bit more experience than I did.

Lack of Manual Provision

There was no evidence, or even an indication, that Mr. Pinto had been given a copy of the manual for the curb machine. Despite the defendant's safety policy that directs Cobra workers to operate equipment as recommended by the manufacturer, Mr. Martellacci believed that Mr. Pinto had not been provided with the manual. The defendant relied solely on Mr. Pinto's experience before he was hired by the defendant.

Demonstration Videos

The defendant introduced two videos into evidence, showing a curb machine being loaded and unloaded from two different trailers. The curb machine in the videos was not the machine involved in the incident. The curb machine in the videos had smaller tires than the machine involved in the incident, and had two solid tires, rather than the four air-filled tires on the machine involved in the incident. The curb machine involved in the incident also had a large protruding water tank attached to it, as well as a wooden form attached to it at the bottom. The float trailer in the first video was the trailer involved in the incident; the second video showed a different trailer. While the defence witnesses asserted that the machine in the video was the same model as the curb machine involved in the incident, the Ministry of Labour Engineer also observed that the curb machine involved in the incident had five steps rather than four, and had an access panel that was not present in the curb machine showed in the videos.

Assistance in Demonstration Video

In the first video, Mr. Martellacci assisted the driver by repositioning the piece of wood on the ground between the ramps. The piece of wood had not been properly lined up with the offset wheel. Without someone to assist, a transport driver, working on his own, would stop the machine; come down the ladder; look at the placement of the piece of wood; adjust it as necessary; and return to the control panel of the machine. The driver may have to get up and down from the machine a few times to do this. In the video, Mr. Martellacci also gestured to the driver, as a signaler would do. Mr. Martellacci commented that the driver in the defendant's videos could be seen manually tilting the machine, to operate the machine on an angle, to get a better view of the path of travel of the machine as it was travelling on or off the float trailer.

Ramp Versus Wooden Block

While commenting on the defendant's videos, the Ministry of Labour Engineer explained the differences in using a ramp versus a piece of wood, as shown in the defendant's videos. The piece of wood creates a "step", and not a "ramp". Using the piece of wood will decrease the distance that the offset wheel drops, but the machine still drops for some distance. In the video, the entire curb machine tilts to the driver's side as it drops. There is very little forgiveness with any tilting, because the tilting occurs near the midpoint of the machine. With a ramp, there is no "drop" whatsoever, as the offset wheel would maintain contact with the surface of the ramp as it travels onto or off the float trailer. The ramps are inclined at an angle which will provide a smooth path of travel.

Unsecured Wooden Block

Furthermore, the piece of wood is not secured to prevent its movement. (In both defence videos, the far end of the piece of wood tilts up and off the ground while the offset wheel moves from the wood onto the ground.) If the wood moved out of position, then the distance of the "step" or the "drop" would increase. Also, because the wood is narrow, and actually narrower than the offset tire itself, the piece of wood may itself tip, if the tire does not land squarely upon it. This would result in a higher probability of the machine tipping.

Part III: Prosecution Articulated Issues and the Law

The Law

Interpretation

The Occupational Health and Safety Act is public welfare legislation. It should be read liberally and broadly:

Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrower technical interpretations that would interfere with or frustrate the attainment of the Legislature's public welfare objectives are to be avoided.

Ontario (Ministry of Labour) v. Hamilton (City), [2002] OJ No. 283 (CA) at para 16, cited in R. v. Prince Metal Products Ltd, [2011] OJ No. 6450 (CJ) at para 42

Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc. 2010 ONSC 2013, [2010] OJ No. 1504 (SCJ) at paras. 20-24, leave to appeal refused 2011 ONCA 13, [2011] OJ No. 24 (CA).

The Court of Appeal for Ontario, in Ontario (Ministry of Labour) v. Dofasco Inc., stated:

. . . as was noted by Laskin J.A. in his decision granting leave to appeal in this case, "workplace safety regulations are not designed just for the prudent worker. They are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless." In our view, this principle also extends to deliberate acts of employees while performing their work.

Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769, [2007] OJ No. 4339 (CA) at para. 24, leave to appeal refused [2008] S.C.C.A. No. 24.

Duties of an Employer

The onus is on employers to ensure the protection of their workers through the enforcement of the OHSA and the related Regulations. As the Court of Appeal has said when considering the duties of an employer under the OHSA:

An "employer" is obliged by s. 14(1) [now 25(1) (c)] to "ensure" that the "measures and procedures" prescribed by the Regulations are carried out in the "workplace". The relevant definition of "ensure" in the Shorter Oxford English Dictionary (3rd ed.) is "make certain". Section 14(1), therefore, puts an "employer" virtually in the position of an insurer who must make certain that the prescribed regulations for safety in the workplace have been complied with before work is undertaken by either employees or independent contractors.

R. v. Wyssen, [1992] O.J. No. 1917 (C.A.) at para. 14.

Strict Liability

Offences contrary to the Occupational Health and Safety Act are strict liability offences. The Crown must prove the actus reus beyond a reasonable doubt. There is no mens rea component. The defendant may establish due diligence by proving, on a balance of probabilities, that it took all reasonable steps or was reasonably mistaken as to the facts:

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.

R. v. Sault Ste. Marie (City), [1978] 2 SCR 1299 at p.18

R. v. Timminco Ltd., [2001] OJ No. 1443 (CA) at para.22-24, 26-27.

Actus Reus

In a prosecution under the Occupational Health and Safety Act, the failings of the manager or supervisor are legally borne by the employer:

In a prosecution of an offence under any provision of this Act, any act or neglect on the part of any manager, agent, representative, officer, director or supervisor of the accused, whether a corporation or not, shall be the act or neglect of the accused.

Occupational Health and Safety Act, s.66(4).

A hazard can include a chance event, such as an accident. The doing of the prohibited act raises the presumption of the commission of the offence, whether it was caused by accident, negligence, recklessness or wilful neglect. It does not matter whether the employer had been satisfied, prior to the accident, that the measures and procedures in the workplace were safe, or that no similar accident had occurred before.

R. v. Prince Metal Products Ltd., supra, at para.47, 49.

Worker misconduct does not go to the actus reus of the offence, even when the worker deliberately disregarded safety training.

Ontario (Ministry of Labour) v. Dofasco Inc., supra at para.22.

The Crown is required only to prove the elements of the offence: there is no requirement to prove how the accident happened. The trial court is not obliged to make a finding as to how the accident happened, merely whether or not the Crown has proved the actus reus beyond a reasonable doubt.

R. v. Prince Metal Products Ltd., supra, at para. 52, 54.

Due Diligence

The defence of due diligence has been interpreted to place a heavy burden on employers to take every reasonable precaution to ensure the protection of workers. Due diligence requires that employers take active steps to protect the safety of their workers by creating procedures and systems to implement the requirements of the OHSA and, further, by ensuring the effective operation of those procedures and systems through their supervisors. The employer's obligation to protect the safety of its workers extends to the protection of negligent, careless, or even reckless workers who deliberately ignore company procedures.

Ontario (Ministry of Labour) v. Dofasco Inc., supra, at paras. 21-27.

R. v. Stelco Inc., [1989] OJ No. 3122 (OJ) at para. 27.

Due diligence must relate to the particular breach of the legislation. General health and safety training does not establish due diligence regarding the specific hazard in issue.

R. v. Prince Metal Products Ltd., supra at para. 41, 63, 64

R. v. Rio Algom Ltd., [1988] OJ No. 1810 (CA) at para. 31.

An employer may not have exercised due diligence where there is a culture of workers being permitted to exercise their own discretion in following safety practices, even where the employer has the appropriate safety policies, equipment, training, and regular instruction and reminders to workers.

R. v. Moran Mining and Tunnelling Ltd., unreported reasons for judgment of The Honourable Justice W. F. Fitzgerald on June 30, 2004 (CJ); aff'd. [2006] OJ No. 2254 (SCJ) at paras. 19-29, 36

Ontario (Ministry of Labour) v. Reid & DeLeye Contractors Ltd., 2011 ONCJ 472, [2011] OJ No. 3817 (CJ) at paras. 51, 72.

Where the facts are known to the employer, and the employer was mistaken in believing there was no danger, this cannot make out the defence of mistake of fact. As explained in R. v. Rio Algom Ltd., the facts were known to them. They simply failed to consider the potential danger to employees which might result from the correct facts which were known to them or were mistaken as to the harm which might be suffered by employees as a result of the facts concerning the existence of which there was no mistaken belief on the part of the respondent's supervisory personally.

R. v. Rio Algom Ltd., supra at para. 20.

With respect to the relationship between due diligence and foreseeability, the Court of Appeal for Ontario held in R. v. Rio Algom Ltd., the test which should have been applied is 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 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.

R. v. Rio Algom Ltd., supra at para. 25.

The defendant is not required to establish the precise cause of the incident. However, if it can be shown how the incident occurred, it may be easier to demonstrate that all reasonable care was taken because this would narrow the issues. Where the defendant has not shown the cause, due diligence may still be available if the defendant proves that it took all reasonable care to avoid any foreseeable cause. It would be an error in law to find that a defendant established due diligence because it did not violate industry standards, or because it was not patently obvious that the defendant did not take all reasonable care. This would effectively place an onus on the Crown to disprove due diligence.

R. v. Petro-Canada, [2003] O.J. No. 216 (C.A.).

Application of W(D)

The principles of R. v. W(D) do not apply in evaluation of a due diligence offence. This is because the defendant has a positive burden of proving due diligence, on a balance of probabilities.

R. v. Prince Metal Products Ltd., supra at para. 50.

Defendant's Position

Overview

It is respectfully submitted that the Crown has failed to prove each and every one of the essential elements of the Charge against Cobra Float beyond a reasonable doubt. The actus reus of the alleged offence has not been proven beyond a reasonable doubt.

It is respectfully submitted that Cobra Float has presented evidence that on the balance of probabilities it has provided every reasonable precaution to prevent the incident. Cobra's policies, conduct and planning in the context of the incident present a defence of due diligence on the balance of probabilities.

(a) Cobra cannot be expected to take measures to avoid all possible causes of this incident, such as human error and/or mechanical failure - which are beyond Cobra's control.

(b) It is submitted that Cobra Float took all reasonable care to avoid any foreseeable cause of this incident.

Actus Reus

The case of R. v. City of Sault Ste. Marie (City) (1978), was quoted in R.v. Timminco Ltd. at Paragraph 54:

"The actual definition of the defence is found in the judgment of Dickson J. at page 374: The defence will be available (1) if the accused reasonably believed in a mistaken set of facts which if true would render the act or omission innocent, or (2) if he took all reasonable steps to avoid the particular event."

The Crown must prove the actus reus beyond a reasonable doubt on the charge before the Defence is called upon to establish due diligence on a balance of probabilities.

It is respectfully submitted that the Crown has failed to prove each and every one of the essential elements of the charge against Cobra Float beyond a reasonable doubt. The actus reus of the alleged offence has not been proven beyond a reasonable doubt.

Cobra Float is charged with, "Failing, as an employer to ensure that the measures and procedures prescribed in section 37(1) of Ontario Regulation 213/91 were carried out in a workplace located at or near James Potter Road, West of Credit View Road, Brampton, contrary to s.25(1)(c) of the OHSA as amended.

Particulars: the curb machine was moved at a project in a manner that endangered a worker. A worker, Luis Pinto, was killed contrary to the Occupational Health and Safety Act s.25(1) (c)".

Ontario Regulation 213/91 at s.37(1) provides that "equipment at a project shall be stored and moved in a manner that does not endanger a worker".

S.25(1) (c) of the OHSA provides that an employer shall ensure that the measures and procedures prescribed are carried out in the workplace.

The charge against Cobra Float, as particularized, requires that the Crown adduce evidence of the endangerment that is alleged with respect to Luis Pinto's movement of the curb machine on May 25, 2013.

It is submitted that the Crown has failed to adduce evidence of acts or omissions on the part of Cobra Float that would provide such evidence.

There is no evidence of any one actually having witnessed the movement of the curb machine in order to be able to explain how it tipped over onto Luis Pinto.

By way of summary, on the actus reus aspect of the charge against Cobra Float, it is submitted that the Crown has failed to prove the actus reus beyond a reasonable doubt. Therefore, it is not incumbent upon the Defendant to mount a defence of due diligence.

The Crown's Case (From Defence Perspective)

Evidence of Crown Witness Karim Kassam, Inspector for the Ministry of Labour

Examination in Chief

(a) From the time of the incident to the time that the machine is removed from the site, it was at all times kept secure;

(b) The ground was fine, it was firm there were no issues with it;

Cross-Examination

(d) He had no prior experience inspecting trailers of this nature;

(e) He drew the conclusion that the Kenworth T800 truck with the Jaycee Trailer which were the subject of this incident were equipment suitable for the task of moving equipment such as the curb machine and the loading and unloading of that same machine - the general transport of equipment from one site to another;

(f) He has never witnessed the demonstration of the loading and unloading of a curb machine on a float such as this;

(g) His only knowledge of that process was acquired during the course of his investigation of this incident;

(h) When suggested to him that in fact Mr. Pinto had moved the same machine a total of 27 times - his reply, that it was not within his knowledge;

(i) When he was talking to Mr. Vitor Vieira (the operator of the machine) it was mentioned that it was self-levelling when set on auto;

(j) When the machine was put upright, it was in a raised position between 23 and 24 inches off the ground - almost a 2 foot difference from where it would be when it is in operation;

(k) The levelling controls were in the automatic levelling position rather than manual. He did not investigate the impact of those two factors (the raised position and the levelling switch set at automatic levelling) in the process of loading/unloading the curb machine;

(l) When asked about the procedure for loading and unloading the curb machine - Mr. Vieira told him that when he had loaded and unloaded, he had put a wooden block to assist him loading and unloading; because the ramps of the trailer were wider apart than the wheels of the curb machine, the function of the wooden block was to assist in the unloading of the curb machine;

(m) The operator Mr. Vieira explained that the reason why he uses that wooden block is because the offset wheel does not line up with the ramp on the left side of the float;

(n) The wooden block is inserted in the void between the two ramps immediately to the right of the left ramp so that the offset wheel has a surface to climb up parallel to the other wheel;

(o) Besides Mr. Vieira, he heard this from others too;

(p) At the scene of the incident, he observed a wooden block sitting on the trailer in the cavity in the middle of the two ramps; equipment that was available to the operator;

(q) When questioned during the video demonstration of the tractor trailer and float being driven onto the construction site (Exhibit "5"), the curb machine is in a relatively low position on the float;

(r) The curb machine was driven onto the project on the float at its low level setting;

(s) Mr. Vieira told him that when he unloaded, the few times that he has unloaded, he always has it in a low position;

(t) Referring to Photograph No. 8 (Exhibit 4 from the Crown Disclosure Brief) depicting the wheels of the curb machine - the wheel on the left is lower in its position than the wheel on the right which would have the effect of tilting the level of the machine to the right;

(u) The configuration of tire marks or scuffs (on the steel ramp section of the trailer) are equally consistent with that mark being made when the curb machine was loaded onto the float; they could have been made from loading or offloading;

(v) There is no block in the void between the ramps; there is nothing to assist in unloading the machine;

(w) "I don't know how he did it, I wasn't there";

(x) "I don't unload and ship equipment, so, no I am not going to start conjecting [sic] as to how the machine was loaded or how it wasn't loaded";

(y) He didn't see this machine in motion at all;

(z) At Photographs 20, 21 and 22 (Exhibit 4) it appears that the machine is tilted; the machine is tilted to the right;

(aa) "Can't say whether that resulted from the action of the operator or as a result of the actual incident itself - there is no way you can determine that";

(bb) No one tampered with the controls in order to change the configuration of the machine. It could have been as a result of the actions of the operator Luis Pinto;

(cc) He had no discussions with any representative of Cobra with regard to loading and unloading procedures and how they were implemented;

(dd) He made no investigation into Luis Pinto's history of employment; he is not aware of what experience or training Mr. Pinto may have had with prior employers;

(ee) The conditions which he observed: (1) the machine roughly 23 inches above ground level; (2) the fact that the levelling control was on "auto" rather than "manual"; (3) the fact that the machine would have been partly on a slope as soon as it started riding a ramp - those conditions could contribute to or cause tipping of the machine;

(ff) "I don't know if Mr. Pinto adjusted the wheels because he realized that the one wheel was offset from the middle of the ramp and he forgot his blocks...I don't know why the machine was that high";

(gg) The missing block would be a significant factor;

(hh) "The main thing is...what's missing between these ramps?"

Re-examination of Inspector Kassam by Mr. Wilson

(ii) Regarding the suitability of the trailer for the task:

(jj) "the equipment, the float and the tractor-trailer, so the tractor trailer part is designed to transport heavy equipment, excavators, curb machines, whatever, from one site to another. So yes, that was designed to transport equipment, so it was suitable for the task";

(kk) "If it was done the proper way, yes, that float truck could have unloaded that curb machine the right way"; the equipment would have been suitable for the offloading task had the blocking or additional ramp been provided.

Mr. Kassam confirmed there were no witnesses to the incident on May 25, 2013. He himself has only seen the curb machine moved on one occasion.

By way of summary: Under cross-examination he stated he had no prior experience inspecting the subject tractor trailer and float. He was asked whether the Kenworth Tractor and JC Trailer were suitable equipment for the task of loading and unloading equipment such as the curb machine; his response was that if the machine is moved properly, the tractor trailer is suitable for the task. He indicated he has not witnessed the procedure for the curb machine being loaded onto the trailer.

When counsel suggested to Mr. Kassam that in fact Mr. Pinto had moved the subject curb machine a total of 27 times - he stated that this was not within his knowledge. He stated that the height of the curb machine when inspected by him during his investigation of the scene of the incident indicated that it was in the high position - approximately 23 or 24 inches above ground level. As for the levelling controls, which can be either on "auto" or "manual" levelling, he indicated that the switches were set to automatic levelling. He did not investigate the impact of those factors (1) the elevated height of the machine; (2) the levelling switches set to auto and (3) the machine would have been partly on a slope - on the movement of the curb machine. When he was asked about the function of the wooden block for loading and unloading, he responded that it serves to assist unloading the machine; that he was told by Mr. Vieira, the operator of the curb machine, that the block serves as a type of ramp for the off-set wheel which would otherwise go between the ramps of the trailer; that he was told that block is always used for that purpose. He confirmed that the subject trailer had the wooden block available for Mr. Pinto's use; that in his inspection of the scene of the incident, he did not observe the block between the ramps of the trailer.

He stated that no one tampered with the controls of the curb machine; that the settings on the control panel (levelling switches set to automatic) could have been the result of the actions of Luis Pinto.

Mr. Kassam agreed with defence counsel's suggestion that it is a fair inference that the conditions which he observed on the curb machine - specifically, (1) the elevation, (2) the levelling controls being set at "auto levelling" and (3) the missing wooden block for the off-set wheel could be factors causing or contributing to the tipping of the curb machine.

Under redirect examination by Crown counsel, Mr. Kassam repeated that the subject trailer was designed to transport equipment such as the curb machine; that if it was done in the proper manner, the trailer was suitable for the offloading task had the blocking been provided.

Evidence of Medhat Abskharoun

The Voir Dire

The Court ruled that, "In the Court's opinion he is able to discharge his duty to the Court (to give evidence and impartial opinion evidence) despite his self-proclaimed limitations with respect to the mechanics and machinery, in which the Court will factor into its analysis when assigning proper weight into its testimony". "Despite the fact that expert is employed by the MOL, and has limited experience with curb machinery, the court will accept him as an expert to provide opinion evidence as to the physics, science and other engineering...factors involved in the tipping of such heavy machinery. Be assured that the Court will be vigilant and mindful of the weighting that it will be assigning to such testimony and to the fact that it is opinion evidence based on the application of general principles and circumstantial evidence gathered after the accident to provide inference value to the Court as opposed to being able to provide incontrovertible eyewitness, or scientific testimony of what actually occurred on that date, time and place beyond a reasonable doubt."

Examination in Chief

Referring to the Photograph No. 7 view (showing the curb machine's rear tires at Page 11 of the his report - (Exhibit 20), the offset rear wheel is extended 6.5 inches beyond the plain of the other rear tire. 6.5 inches difference between the right hand rear wheel and two front wheels.

In reference to the elevation controls - the front left elevation, left rear elevation, right side elevation switches were all on auto.

In reference to the tire marks observed on top of chassis rail, the left hand side chassis rail - there is no way to tell when those tire marks on the top of the chassis rail were made. He states, "Maybe that tire went on that chassis rail, that's maybe - maybe it was just a mark from a previous loading or unloading; there is no way to tell".

When asked whether there were any wood or other objects that could have been used to block up that centre portion between the ramps, he answered there were pieces of wood right in the middle between the two chassis rails on the trailer. On the ground, down between the rails he did not see any.

When asked about the height of the chassis of the curb machine, he stated it was between 22.44 inches to 23.23 inches. He explained the significance of the centre of gravity to the mechanism of the collapse - to keep any object stable, the centre of gravity has to come in between the pivot points; The centre of gravity is moving; once that line crosses the outer pivot point, it will tip.

When asked, how does the height of the machine, if at all, play into the calculus of the centre of gravity, his response - It's the passing of the pivot point by the centre of gravity line that makes the unstable condition; the higher you go the less angle it needs to tip.

When questioned, what effect would the elevation of the machine at 23 inches have on the centre of gravity of the curb machine, his response "It would make the angle required to tip the machine much less".

Under Cross-Examination

When it was suggested that in order to load and unload the machine, all three levelling toggles should be on manual, he responded that it makes sense.

He did not actually witness the on-loading or unloading of a curb machine on a trailer; he did not undertake that particular due diligence as part of his investigation.

When asked what happens when the curb machine is moving down the ramps with the toggles on auto level, he answered that the machine will try to level itself if there is any difference in level; the machine will move because of the difference between the front and the rear.

At this point, Defence counsel suggests what may have occurred on May 25, 2013; the following is an excerpt (starting at Page 59):

Question: "So if in fact, Mr. Pinto starts off with the machine level at 12 inches, starts crawling down the slope, changes the slope, changes the level of the machine and all of the sudden now those auto-levelling mechanisms of the machine are going to kick in and start raising the machine aren't they?...Number 1, the machine is going to potentially dance, correct?"

Answer: "Yes it will..."

Question: "And the machine will raise its level won't it?"

Expert: "That's correct".

Question: "Because it is on auto rather than manual?"

Answer: "Correct".

Question: "Is that going to increase the risk of this tipping?"

Answer: "A hundred percent".

As to the positioning of the rear wheels of the curb machine on the trailer defence counsel suggests that, "Well I put it to you that in fact both those wheels were sitting almost on an equal plane because of the fact that the offset wheel is sitting on those plates which appear between the two rails just before the end of the trailer where the ramp begins. Is that a valid suggestion that I am putting to you?" Answer, "Again, it's a possible scenario but not only scenario yes".

Regarding the wooden block, defence counsel suggests that, "...in order for Mr. Pinto to have gotten the machine sitting on the trailer the way in which you describe it at Figure 4, the only way that could have happened was for him to use a wooden block at the offset wheel when he loaded it onto the trailer". The answer, "I call it a ramp, yes". He confirmed that in fact the trailer had such a wooden block. He pointed out the wooden block in Photograph 5 at Page 196 of his Engineering Report (Exhibit 20).

As to when and how the tire marks on the rails of the trailer were made - he stated, tire marks are very hard to estimate when they are made.

Defence counsel put another theory to the expert witness with regard to how the tire marks were made; Question: "The tire mark on the rail, if for whatever reason you don't know the motive here, the operator tried to avoid the need of putting that block there by riding the rail, wouldn't that explain the tire mark on the rail by the offset wheel consistent with what shows up on the photograph?" (referring to Page 17 of his report, Exhibit 20). His reply, "That could be a possible scenario".

Regarding the suitability of the trailer, Question: "I put it to you that the only way the goose neck trailer is going to work is for the ramps to be in this configuration; that you can't have a middle ramp, otherwise there is no way of hooking the trailer to the goose neck that is part of the tractor that pulls it". Answer, "that's right". But when asked if he has ever seen such a trailer that has a ramp that extends the full width of the trailer, in practice, his answer is "no". When asked whether he made any inquiries as to whether such a trailer is being used by any of the trades in the Province of Ontario he did not make that inquiry. When asked where that trailer is available, he did not know.

Regarding the mechanical condition of the curb machine, he did not examine any reports of the mechanical condition of the curb machine; he did not know when the machine was last inspected.

When asked what did he do by way of due diligence to rule out the possibility of mechanical failure, he replied "I did not do any mechanical testing on it myself". He made no independent inquiry as to the possibility of mechanical failure.

He stated, "It's construction equipment, its subject to a lot of abuse".

Evidence of Medhat Abskaroon (Recalled)

Recalled as witness following Mr. Martellacci's testimony; under cross-examination.

He stated that he never did an analysis of loading or unloading of a curb machine similar to what was done on the demonstration video (Exhibit 25).

It is the first time that he has seen the loading or offloading using the type of trailer with this particular configuration of ramps (observing the video Exhibit 25).

Little Weight to be Accorded to Mr. Abskharoun's Evidence

The Crown presented Mehdat Abskharoun to provide expert evidence to the Court about the issues being litigated. The Defence has challenged the expertise of this witness to give evidence with regard to the design, function and movement of the curb machine. It was submitted by Defence counsel that it is up to the Court to assess the weight of the evidence.

When cross-examined on his qualifications as an expert, it came out that he is a civil and structural engineer, not a mechanical engineer; that he is not an expert as to the kinetic factors in the moving of heavy equipment - in the mechanics of movement of heavy equipment. He admitted that he never witnessed the loading or offloading of a curb machine; that his evidence with regard to the factors at play in the movement of the machine are based upon his observations on the day that he attended to inspect the site. By reason of his lack of expertise in mechanical engineering, it is submitted that Mr. Abskharoun's evidence should be accorded little or no probative value.

With regard to his objectivity as a witness, he indicated that he has been employed by the Ministry of Labour since June of 2010; that any evidence he has given in a courtroom has been on behalf of the Ministry. He indicated that he has testified for the Ministry at two inquests and one trial. He stated that he has never given any opinions on behalf of a Defendant.

When asked his opinion as to the adequacy of the trailer, his evidence was that it was not adequate for loading and unloading the curb machine - the solution is one ramp across the entire width of the. It is submitted that this evidence is contradictory to the evidence of the inspector Kassam. Furthermore, under cross-examination, Mr. Abskharoun indicated that he has only seen such a configuration (one ramp across the entire width of the trailer) on the internet. It is submitted that his opinion in this regard is to be given little or no weight. His opinion fails to deal with the reality that the ramps are configured as two separate ramps because the trailer needs to connect to the goose neck connection of the tractor. It is submitted that the Crown has failed to present evidence as to the availability or actual use of such as trailer as described by Mr. Abskharoun in the workplace.

Evidence of Vitor Vieira

The Crown did not ask for any opinion evidence; rather it was relying on his experience.

Regarding his experience moving the curb machine, he has participated in loading and onloading a couple of times; has never assisted or participated in offloading.

Regarding use of the wooden blocks, on each of the occasions, when he participated in onloading the curb machine, the driver assisted by placing the block like a ramp so the back left wheel can climb onto the float.

His observation at the scene of the incident - he did not see anything between the ramps or close to the ramps that was being used as a block, the kind of ramp which he had identified previously in his evidence.

Cross-Examination

With regard to any training or instruction - he had never received any instruction regarding loading; he learned by simply watching another operator do it.

Mr. Vieira indicated that he actually observed the curb machine being loaded a couple of times and he felt that he was qualified to load it himself after observing it being loaded a couple times. When asked whether there were any courses available in the workplace for loading and unloading the curb machine, he indicated "no". He indicated you can only learn how to do it by observing.

With regard to cautions or precautions in the operating manual - specifically, with regard to loading and offloading procedures his recollection is "not to travel to high...not to exceed 1 foot".

Regarding the wooden blocks:

Q. "On the occasions when you loaded the curb machine onto a trailer, I take it you use the wooden blocks as ramps?"

A. "Yes".

Q. "And was that necessary in order for the offset wheel to be able to climb up onto the trailer?"

A. "Yes".

Q. "I take it then that the only way to do it safely is to use a wooden block in order to allow the offset wheel to get onto the trailer?"

A. "Yes".

Re-direct by Crown

Under redirect by Crown counsel, in regard to the sensors, he indicated that they are only used on the left side; on the right side the leveling controls are always on the auto setting; that during the loading and unloading of the curb machine, the auto leveling controls would have no effect on the leveling of the machine; that you would have to do it manually. He indicated that without the sensors, "the machine doesn't do anything".

The court observed that Mr. Vieira has no experience offloading the machine.

Significance of Exhibit "12" - Domson Inspection Report dated June 18, 2013

On day 2 of the trial, Defence counsel raised objection to the admission of Exhibit "12" (the Domson Inspection Report dated June 18, 2013) for the truth of its contents; that it is hearsay.

At the start of Day 3 of the trial (October 19, 2016), the Crown indicated his position with regard to Exhibit 12 and stated, "The Crown in respect of Exhibit 12 does not rely on the truth of the contents for any of the statements relating to mechanical inspection or the structural inspection that is set out in the report. I don't rely on the report for the truth of its contents relating to structural or mechanical integrity, but simply for the information that goes to the inspector's state of mind in lifting the stop work order on the machine". Defence counsel agreed.

Defence counsel expressed concerns that there should be a clear understanding that no inferences can be drawn as to the mechanical condition of the curb machine. There is no evidence before the Court as to its mechanical condition and the Crown concurred.

It is the position of the Defence that no inferences can be drawn as to the mechanical condition of the curb machine. The Crown elected to not call the engineer who prepared that report (Exhibit "12") and the Defence has had no opportunity to cross-examine or to examine the mechanical condition of the curb machine prior to it being released to its owner, Quatro Construction, following inspection by the Ministry.

The Crown then indicated that it was closing its case, subject to its agreement with the Defence to recall its engineer Mr. Abskharoun who would comment on the video evidence.

In Oral Submissions, Defence Counsel Argued the Following

The Crown has failed to tender evidence as to the mechanical fitness of the curb machine. There was a mechanical failure - this has not been addressed by the Crown's case. It was submitted that the testimony of Mr. Vieira with regard to the functioning of leveling switches raises serious doubt as to the impact of the raised level of the machine (23 to 24 inches), the leveling switches being in the auto position, rather than manual. The court is left with serious questions raised by the evidence, particularly Mr. Vieira's evidence that removing the sensors on the left side of the curb machine renders the switches in the auto position inoperable, and Mr. Vieira's evidence that the height of the curb machine should not exceed 12 inches when offloading, whereas the machine was raised at least 23 inches when observed following the incident.

The court is left to speculate whether these conditions were a result of mechanical failure, or possibly, human error.

It is submitted for the actus reus to be proven beyond a reasonable doubt, mechanical failure needs to be ruled out, as the Defendant Cobra Float is the farthest removed from the mechanical condition of the curb machine.

It is submitted that the lack of evidence as to mechanical fitness of the curb machine results in the Court not being able to determine the cause of the accident. The court is left to speculate on what was the cause of the accident leading to the death of Mr. Pinto. It is not an issue as to weight of evidence. Rather, it is an issue of reasonable doubt at the end of the Crown's case because a fundamental element which needs to be proven beyond a reasonable doubt i.e. the cause of the "accident" is lacking. It is a reasonable inference from the evidence that mechanical failure in combination with human error is the cause of the "accident". It has not been ruled out.

It is respectfully submitted that the charge against Cobra Float requires that the Crown adduce evidence of the endangerment that is alleged with respect to Mr. Pinto offloading the curb machine on May 25, 2013.

At the conclusion of the Crown's case there is reasonable doubt with regard to the cause of the incident. There is a possibility of mechanical failure, either alone or in combination with human error on the part of Mr. Pinto. The Crown has failed to adduce evidence of acts or omissions on the part of Cobra Float that would provide such evidence. The actus reus of the alleged offence has not been proven beyond a reasonable doubt.

Defence of Due Diligence

The Defendant believes that Cobra Float has presented evidence that, on the balance of probabilities, it has provided every reasonable precaution to prevent the incident.

Section 66 of the Act provides for a Defence of due diligence as follows:

"66(3) On a prosecution for a failure to comply with,

(a) subsection 23 (1);

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

(c) subsection 27 (1),

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

A review of case law addressing the elements of due diligence indicates that Cobra Float's policies, conduct and planning in the context of the incident present a defence of due diligence on the balance of probabilities.

Reasonable Foreseeability

The basis of the due diligence defence is reasonable foreseeability.

The Ontario Court of Appeal held in R. v. Rio Algoma, (1989) 1 COHSC 1 (Ont. C. A.) to take every reasonable precaution, an employer or supervisor is under a duty to foresee all reasonable dangers that may arise; this does not mean that they are under a duty to contemplate every possible type of accident.

In the present case, the question is therefore, was it reasonably foreseeable for Cobra Float to contemplate that a trained and experienced float mover would fail to employ the methods and safety precautions for off-loading the curb machine which had been employed by that driver on 27 previous occasions?

Cobra Float submits that it was not reasonably foreseeable to contemplate such an unlikely scenario, particularly given the training and experience of Mr. Pinto.

Training

The Courts have held that an employer can rely on the defence of due diligence when the employee, despite training and knowledge of the proper procedures, did not follow those procedures. Most importantly, Courts have found that such actions are not foreseeable by the employer.

In R. v. Proboard Ltd. (1990), W.C.B. (2d) 567 (Ont. Prov. Ct), an employee who had on the job training and knew proper procedures did not follow such procedures and lost her leg. The Court held that employee's actions were negligent and could not have been foreseen by the employer. The employee, by virtue of her training, was aware of the proper procedures to follow and acted contrary to that training and contrary to common sense.

In R. v. 413554 Ontario Ltd., 2005 CarswellOnt 8400 (Ct.J.), an employee roofer fell when the single-clip device on his harness broke. The employee had been trained and reminded to use double-clip devises. The employer had provided double-clip devises. The employer periodically attended the site to check safety equipment. The employer made out a due diligence defence.

Experience of the Worker

In addition to reliance on training, an employer can rely on the relative experience of the worker. This reliance is intuitive since the more experienced the worker the less foreseeable it is that he would knowingly breach a safety regulation. (Ontario (Ministry of Labour) v. MacMobile Welding & Contracting Inc. 2002 CarswellOnt 5814 (Ont. C.J.)).

Responsibility of the Worker

The experience and training of the worker informs the amount of on-site supervision which is required by the accused in order to make out a defence of due diligence. In R. v. Valley Forest Products Ltd., 1990, 4045 (NBCA), referring to s.9(1) of the OHSA of New Brunswick, which defines the general duty of employers with respect to the health and safety of their employees, the Court of Appeal ruled that the duty on an employer to provide instruction and training necessary for each employee would depend upon the particular employees' prior training, knowledge and experience; the duty is not absolute in all cases; the words "necessary to ensure" used in s.9 of the OHSA (New Brunswick) do not make an employer the insurer of its employees' health and safety in all circumstances.

In R. v. King Paving & Materials Co., 2007 CarswellOnt 8494 (Ont. C.J.), an experienced worker and supervisors' lead hand was injured on the job. Despite a lack of constant surveillance to ensure compliance with instruction, the due diligence defence was made out. The employer was found to have met the "reasonable care" requirement in that they could not have foreseen the accident and could reasonably expect the victim to follow orders and procedures that had been previously used and followed.

The Evidence

Evidence of Robert Martellacci - Examination-in-Chief

Mr. Martellacci, principal of Cobra Float service gave evidence of the history of Cobra:

Cobra has been active for a period of 30 years
Provides a service for construction companies
They move a variety of machines from bobcats weighing approximately 10,000 lbs. to machines weighing 80 or 90 tons
In 2013, Cobra employed between 20 and 24 people
There were 13 or 14 drivers; there was a safety and compliance officer Peter J. Steuernol who helped do some training and keep Cobra compliant with Department of Transport to maintain a good standard with commercial vehicle operation rating registration (CVOR)

With regard to Cobra's equipment, it had 15 Kenworth trucks model T800 in use and operation at that time.

The trailer involved in the incident was a hydraulic detachable gooseneck trailer, the piece of equipment is driven onto the trailer, the driver must remove the gooseneck from the trailer in order for the equipment to be driven onto the trailer; the driver disconnects the gooseneck off the trailer and makes it accessible for equipment to be loaded or unloaded from the front of the trailer.

Mr. Martellacci testified regarding Cobra's safety policies. The Safety Policy was introduced as Exhibit "9" consisting of 22 pages, all drivers get a copy, read it, then they have meetings and talk about it to comply with safety regulations.

Mr. Martellacci was asked what measures he implemented to ensure that each driver read it, acknowledged it and complied with it. He replied that they are supposed to read it and come up with any questions, if there were any, they would discuss them amongst groups of workers.

Mr. Martellacci was asked what directives and practices as set out in the Safety Policy were implemented in practical terms. He explained how the drivers were expected and/or required to implement those directives in the course of their duties - only drivers that are trained are able to operate trucks, trailers or any of the machinery that they are loading on or off the trailer. All drivers are experienced in moving equipment, so if there is a driver that is not familiar with a certain piece of equipment, there should be an experienced person there to guide them on or off or teach them, to train them.

Employees are told not to be talking on phones or two-way radios to be 100% focused on the task they are doing.

If there are any problems on job sites, the drivers discuss among themselves when they congregate back at the shop.

Safety Meetings are held every three to four months; there is training on awareness, stories that have happened in other companies to keep everyone aware of safety that is involved in what they do; attendees include office staff, mechanics, Mr. Martellacci, his two sons, Constable Dal Gill (Toronto Police Service).

At the time Cobra hired Mr. Pinto, Mr. Martellacci recognized his two prior employers as both reputable companies. To work for those two companies for the amount of time that he did, Mr. Pinto had to be an experienced driver. Mr. Pinto provided him a list of the equipment that he moved then Mr. Martellacci said, "If you can move all those machines then I'll give you a job".

When asked about Cobra's orientation program for new drivers, Mr. Martellacci explained that at the point of hiring, one of Cobra's senior drivers would drive with the prospect spending a day with him; but since Mr. Pinto was an experienced driver, there was no need for a senior driver to spend any more time with him. Mr. Martellacci saw that he could drive properly and knew what he was doing when he was loading/unloading equipment.

When asked about Cobra's safety meetings policy, Mr. Martellacci explained that safety meetings are held every three months outside of the normal shop talks; third parties attend.

When asked about implementation of "Specific Truck Equipment Policy", Mr. Martellacci explained that apart from the truck and trailer, there are the chains and binders used to secure machinery to the trailer; there is also some blocking - pieces of wood used as a ramp to assist in loading/offloading equipment from the trailer; that it is the responsibility of the driver to maintain that equipment and they have the use of it whenever it is needed.

Mr. Martellacci was asked about "Transporting of Heavy Equipment, Loading and Unloading Procedures" (Exhibit 15). He answered that the purpose is to educate the drivers about the procedures.

Demonstration Video - Exhibit 25

Mr. Martellacci then commented on a demonstration video (Exhibit 25) during which Mr. Martellacci explained the practical implementation of those procedures while observing and commenting on the loading/unloading of a similar piece of equipment.

The demonstration video (Exhibit 25) was recorded October 3, 2016, using a similar curb machine and the same trailer that was involved in the incident of May 25, 2013.

During the demonstration, Mr. Martellacci explained the function of the block of wood in that it acts as a ramp for the offset wheel. He also commented on the height of the machine above; it only has to be high enough to clear the ramp of the trailer so that nothing bottoms out.

He explained that the levelling control of the machine must be set to "manual"; if the levelling controls are on "automatic" the machine could try to correct itself as it is changing elevation; that would make the machine sway, move side-to-side, would affect its stability.

Mr. Martellacci was asked what would Luis Pinto be expected to do upon arriving at the site the morning of May 25, 2013 by way of standard procedures. Mr. Martellacci explained as follows:

(a) Mr. Pinto would pick a location to unload the machine, a level area with no obstructions.

(b) He would split the float and drive the tractor ahead.

(c) He would untie all the chains, the tie downs, he would have to put the block of wood in place for the offset wheel to act as a ramp for the offset wheel, he would start the machine, would raise it to an elevation to clear the ramp and then he would drive it off; as he is offloading the offset wheel is not on the beam, it is beside the beam.

A second demonstration video (Exhibit 25) was viewed by Mr. Martellacci, in which the same curb machine, but a different trailer was used. During that demonstration, the location and function of the wooden block was the same. It was put in the same spot as in Video No. 1 and was used for the offset wheel for loading/unloading. He explained that the only difference is that the trailer in video 2 is about 6 inches higher than in the trailer used in Video No. 1.

The Court asked Mr. Martellacci about the wooden block. Mr. Martellacci described it as a 6 x 6 or 6 x 8, approximately 1.5 to 2 feet in length.

When asked whether he observed the wooden block at the accident scene on May 25, 2013, Mr. Martellacci answered that the wooden block was on the bed of the trailer.

Mr. Martellacci testified that to his knowledge the curb machine cannot be safely unloaded without the use of the wooden for the offset wheel.

With respect to Cobra's safety history, he testified that Cobra has never been charged under the OHSA; that Constable Dal Gill of the Toronto Police Service attended safety meetings and provided his input to teach Cobra's drivers what the police force and the Ministry of Transport is looking for to keep them aware in April of 2013, a month before the Pinto incident occurred, Mr. Martellacci was involved in a community outreach program by the MTO and the OPP.

Mr. Pinto's Employment History

Mr. Martellacci was asked what he did to satisfy himself that Mr. Pinto had the right knowledge, training and experience to move equipment of this nature. Mr. Martellacci replied that, Mr. Pinto had worked for two other float companies for a number of years and that he had moved machines that "got to be two of the trickiest machines to operate" - specifically, a concrete laser screen machine. Furthermore, he indicated that he watched Mr. Pinto load and unload both of those kinds of machines so that Mr. Pinto satisfied him with his experience. One of those machines had to be moved on a jobsite; Mr. Martellacci accompanied Mr. Pinto the first time to watch him.

When Mr. Pinto was hired by Mr. Martellacci as a float operator, Mr. Martellacci inquired into his prior experience moving curb machines. Mr. Martellacci exercised due diligence in investigating his skill, experience and training and satisfied himself that Mr. Pinto had the proper skill and experience as a float operator, and specifically, for loading and off-loading curb machines.

Mr. Pinto's previous employers were SPG Heavy Haul and A and A Float Service; Mr. Martellacci was aware of the number of vehicles/trucks they had and the size of those companies, they were his competitors.

Mr. Pinto was considered a very good driver; assessed by Mr. Martellacci as one of the best. He was very conscientious and got along with everybody.

Cobra Float's Records Regarding Moves of the Curb Machine

Mr. Martellacci produced a bundle of invoices and bills of lading for the period from July 25, 2011, to May 22, 2013, indicating 66 occasions when the Quattro Construction curb machine was moved by a Cobra driver other than Luis Pinto.

Mr. Martellacci produced invoices and bills of lading from August 17, 2011, to May 25, 2013 as evidence of 27 occasions that Luis Pinto moved the same curb machine owned by Quattro Construction.

Mr. Martellacci was asked whether he was aware of any safety issues on those 93 occasions (66 + 27) when Cobra moved that same curb machine (other than the incident of May 25, 2013). He replied that there were none whatsoever.

Mr. Martellacci also testified that Mr. Pinto moved a similar curb machine for Durakrete Construction. He produced a bundle of invoices and bills of lading in relation to the moving of a curb machine owned by Durakrete by Luis Pinto on seven occasions from July 27, 2011, to November 19, 2012.

Mr. Martellacci also testified that he was not aware of any reports of any safety issues arising on any of those occasions.

In total, the subject curb machine owned by Quattro was moved 93 times by Cobra Float drivers – 27 of those occasions by Luis Pinto. Additionally, a similar curb machine owned by Dura Krete was moved on 7 occasions by Luis Pinto during that same period of time.

All of those moves of the curb machine by Luis Pinto and Cobra Float, excepting May 25, 2013, were executed safely and without incident.

No Opportunity to Inspect Curb Machine

Mr. Martellacci was asked whether he or any representative or agent of Cobra Float had the opportunity to inspect the curb machine that was involved in the May 25, 2013, incident, he replied "No". Furthermore, Cobra had no information pertaining to the mechanical condition of the curb machine on the day of the incident.

No Training Courses

When asked whether he was aware of any courses or training for the loading or unloading of a curb machine between the time he hired Mr. Pinto to May 25, 2013, he replied that, "Not to my knowledge".

Cross-Examination

Under cross-examination, Mr. Martellacci testified that no one has ever produced a manual for the 1988 EZ-Pour curb machine which was involved in the May 25, 2013, incident.

Evidence of Gary Vieira; Examination-in-Chief

The following is a summary:

He was employed by Cobra as an operator/truck driver for 12 years having commenced employment in May of 2005; his prior work experience was for Concord Transfloat as tractor trailer driver for a year and a half or so; he was aware of the May 25, 2013, incident after receiving the phone call from Robert Martellacci
He went to the scene
He described the hiring process by Cobra; Mr. Martellacci hired him knowing that he had some experience already with floating
In reference to the Cobra Float Service Safety Policy (Exhibit 9), he testified that he was expected to read through it and understand what was in it
He understood what was required in terms of day-to-day operations; safety is a big concern; with regard to safety meetings he indicated that they have safety meetings every 6 months; they bring up any concerns and try to resolve them; he attends on a regular basis; they are attended by the drivers, mechanics, Bob Martellacci, safety reps for WHIMIS etc. He is expected to bring up any concerns at those meetings.
When asked about acquiring experience with particular machinery it was mostly done by hands-on training; you get to the machine; get familiar with the controls and you learn as you move them
With regard to the curb machine that was involved in the May 25, 2013, incident he stated that he moved that curb machine many times
He was referred to the bundle of invoices marked Exhibit 22 indicating that he moved that particular curb machine a total of 12 times in the period July of 2011, to May 2013; he identified his signature on the bills of lading attached to the invoices in Exhibit 22; he is very familiar with the operating of that curb machine
When asked about having acquired the familiarity and experience on that particular machine; when he was called to move it the first time the operator was onsite; showed him the controls; what to do and what not to do; showed him for the first time how to load it and unload; from thereon it was hands on experience
There were no courses available for him to learn how to operate that machine
There were no manuals on how to operate the machine
He has never heard of any such courses or manuals for this particular machinery
The only way is on the job training from observations and hands-on experience
And that's the case with other pieces of equipment and machinery, it's hands-on experience
When asked about Cobra Float Services - transporting of heavy equipment - loading/unloading procedures (Exhibit 15) he stated it tells you the conditions to load and unload the machinery; what to do and what not to do when unloading machinery. He is expected to follow this procedure in the course of his loading and unloading the curb machine

The Demonstration Video (Exhibit 25)

He stated that he was present during the making of the demonstration video (Exhibit 25). While viewing that video, Exhibit 25, he testified:

(b) It's pretty much identical to the curb machine that he moved for Quattro;

(d) While referring to Exhibit 15 he proceeded to state how those directives are put into practice and stated what the driver/operator is expected to do in terms of the loading/offloading of this curb machine;

(e) It is the responsibility of the driver to ensure that the block of wood is on the trailer;

(f) That block of wood is an essential piece of equipment for the trailer;

(g) He is very familiar with the trailer, it was used during his moving of the subject curb machine;

(h) With regard to the leveling switches, you want to make sure that all controls are on "manual" so that there is no unexpected movement of the machine; you are in full control;

(i) If it is on "auto" it will start to dance and shimmy; try to level itself;

(j) If it is on "auto", as you are climbing it will try to correct itself causing the machine to dance back and forth; makes it unstable;

(k) In his practice, he was alone; never had a spotter. As for visibility it is perfectly clear, you can see around the whole machine, all four corners;

(l) The wooden block is positioned more or less in the centre of the trailer; you may need to readjust it if it is not in the centre of the tire that is going to be climbing it;

(m) As for the height of the machine - you want to keep the centre of gravity as low as possible, to keep it stable;

(n) While observing the rear tires climbing onto the trailer, he confirmed that this is typical of what he would actually do in the course of loading a machine;

(o) In describing the offloading procedure you put the wooden block in the middle of trailer - in terms of the height, you keep it as low as possible, just enough to clear the hump on the trailer so it doesn't bottom out;

(p) The leveling switches are always on "manual"; you always want full control;

(q) You try to keep it as level as possible and as low as possible - when the machine comes down it will land softly on the wooden block;

(r) The wooden block in the video is typical of the block of wood that he would have used on the occasions when he moved that machine; it's standard;

(s) He did not experience any loss of stability while unloading on the occasions that he moved the machine;

(t) He never experienced any loss of stability at any point;

(u) There was nothing different about what he was observing on the demonstration video compared to what he would have experienced on the 12 occasions when he moved the curb machine;

(v) He had no safety experiences where he felt unsafe using that procedure;

(w) It is not possible to load and unload the curb machine safely onto the trailer without using the wooden block he has never observed anyone do that;

(x) When asked about his observations of the scene of the incident referring the photograph taken at the scene of the accident and when asked about the differential in the height of the offset wheel as compared to the rear wheel on the right side which according to the engineer measured 6.5 inches, he explained that would have been caused by the auto- adjust of the machine, in his experience; it would have been due to the controls being on automatic and not manual;

(y) In his own experience in loading/unloading this machine he would try to keep it as level as possible; he would have concerns if the rear wheels had a differential because the machine would not have been stable;

Cross-Examination

Under cross-examination by the Crown, he was asked about the differential in height of the rear wheels, he stated "the only thing I can think of was that if he didn't have either full control of the vehicle or he set it that way…from my experience that what I would have assumed";

He was never shown a manual for the subject curb machine owned by Quattro;

He has never seen trailers that have a full ramp across the back, just one on each side.

Evidence of Michele Conetta

Examination-in-Chief

Summarized as follows:

(a) As for his employment history, he had been employed by Cobra for 13 years (moving heavy equipment) driving a Kenworth tractor trailer including a curb machine;

(b) With regard to the curb machine involved in the incident of May 25, 2013, he had moved it many times over his 31 - 32 of years of experience with Cobra as well as other employers;

(c) With regard to his prior work experience, he indicated that he gained a lot of experience; everything was all self-taught;

(d) When asked about how he acquired the training to operate the curb machine "I seen how other guys did it and then slowly I had to do it myself, and I self-taught myself on how to do it. That's about it. I just did everything myself";

(e) "I would see other guys do it and that's how I learned. That's how I learned everything";

(f) He is not aware of any courses available in the marketplace whereby you could be trained;

(g) There are no manuals available providing written instructions on how to operate or load or unload the curb machine;

(h) When asked about the screening/training process when he was employed by Cobra, he stated that Mr. Martellacci knew him from a long time ago and how he did his work; he was aware of the way he worked;

(i) When questioned about Cobra Float Service Safety Policy (Exhibit 9) he answered that it was shown to him and that it tells you everything about how you go about your job;

(j) He indicated that they had safety meetings every three months; he attended every safety meeting; they there were attended by all drivers; they would bring in the "safety guy" and they would talk about safety about loading/unloading procedures; how to do their jobs safer; everything in general about safety, about work;

(k) At the meetings, the interactions were all about how they did their job, how to work safer, all general stuff about safety;

(l) When questioned about the "Cobra Float Service Transporting of Heavy Equipment Loading/Unloading Procedures" (Exhibit 15), he stated that he was familiar with it; that it tells about how to load/unload; how to secure your load; making sure your ground is always level, where you can see all four points when you are loading/unloading; everything about safety. It's all about loading, unloading and doing your job correctly;

(m) He commented while observing the demonstration video (Exhibit 25); he commented on what his training and experience requires him to do in terms of the loading/unloading procedure;

(n) He was familiar with the Quattro curb machine having moved it a couple of times;

(o) With regard to the levelling controls, he indicated that when loading and unloading they must be on "manual", otherwise the machine will start levelling off by itself; it starts to do dance around. If it doesn't stop there is a danger of flipping over. So it always has to be on "manual". So this way you are always controlling the machine yourself. If it is on "automatic" it is going to dance.;

(p) With respect to the height, you leave enough room to clear the trailer - maybe a foot, a foot and a half;

(q) "If it is high and on automatic it is going to start dancing around...your centre of gravity is very high and it is a dangerous way to do it";

(r) With regard to the wooden block, he stated "The rear wheel on the other side is going to go on the steel ramp. And the other one is going to climb up the block. And is going to climb up that block in order to help the machine to get up on the float";

(s) "You have to have a block there in the middle...you need a block";

(t) "He indicated it's the driver's responsibility to have the wooden block as standard equipment on the trailer";

(u) "The function of that block for this particular machine is that when he is loading and unloading that block helps the machine go up and down from the trailer...that block has to be there...";

(v) When he moved the machine, he did it alone;

(w) While observing the demonstration video (Exhibit 25), he indicated that he can see all around the machine;

(x) When asked about moving the machine at a height of 23 inches off the ground, he indicated "that's high";

(y) When asked about what effect that would have on the stability of the machine, he stated that "It is more capable of moving";

(z) When asked about the levelling switches, "Never on automatic, always on manual...when it is on automatic it is going to dance around. You have to have it on manual. That's the only way you can do it.";

(aa) When asked about using the wooden block for the offset wheel, he stated that he has never loaded or unloaded that curb machine without using a block for the offset wheel;

The Conversation with Mr. Pinto

Following a Voir-Dire, evidence revealed that Mr. Conetta was party to a 10 minute conversation with Mr. Pinto on the Friday before the incident:

"I asked him, what are you doing this weekend? And he said tomorrow...he was going to see a mortgage person for - because he was buying a house in Tottenham...And all I said to him was "Luis, you know I'd love to buy one up there too".

"We were just talking about living in Tottenham. And he wanted to buy a house and he was really happy about it. He was happy about going to see his mortgage guy".

This is evidence of Mr. Pinto's state of mind. It can be inferred that Mr. Pinto was distracted the morning of May 25, 2013; that he was in a hurry - possibly anxious about the impending meeting "with a mortgage person" and buying a house in Tottenham. This may have caused him to make fatal errors in the unloading of the curb machine; it can explain his failure to follow standard procedures for unloading - principally: (1) leaving the levelling switches on auto rather than manual causing the curb machine to "dance" as it was being unloaded; (2) Failure to keep the curb machine low to the trailer; allowing it to be raised 23 or 24 inches as it was being unloaded; (3) Failing to insert the wooden block between the ramps for the offset wheel; (4) tilting the rear wheels such that there was an approximate 6 inch differential causing the machine to tilt to one side.

It can be reasonably concluded that these four factors, which can be attributed to human error on the part of Mr. Pinto, caused the centre of gravity of the curb machine to cross the pivot point and flip over onto Mr. Pinto.

Evidence of Fernando Velocci

(a) He is the principle of Durakrete Construction which owns a curb machine;

(b) When compared to the curb machine shown on the demonstration video (Exhibit 25), he indicated that Durakrete's curb machine has steel tracks whereas the curb machine in the video has rubber tires; as for the configuration of the rest of the machine, it is generally the same;

(d) He identified the series of invoices from Cobra (Exhibit 24) indicating the 8 occasions when Durakrete's curb machine was moved by Cobra during the period from July 27, 2011, to November 19, 2012;

(e) He witnessed several of the float moves by Cobra;

(f) When he observed the curb machine being moved by Cobra's driver, he was not concerned at any time about any issues safety issues or in the manner in which that machine was being loaded/unloaded.

Cobra's Due Diligence (Defendant's Position)

Cobra Float's safety policies, its commitment to training, and the reasonable expectations that Mr. Pinto would follow proper offloading procedures and Mr. Pinto's training and experience all serve to support a finding of due diligence.

Cobra Float submits that the Act and Regulations do not contemplate that the employer supervise every action of a skilled and experienced worker.

In fact, in R. v. Funduk (1992), 10 C.O.H.S.C. 103 (Prov. Ct.), the Court found that such an expectation is more than the standard of reasonable care but is closer to the standard of perfection. In that case, a site supervisor checked in on the painters and their scaffolding the day before the accident. On the day of the incident, the painters told the site supervisor that they were waiting for the paint. The Court found that, given his heavy work schedule, it was unreasonable for the site supervisor to have waited around for the paint to arrive or for the supervisor of the sub-trade. Furthermore, it was not reasonable to expect him, as site supervisor, to oversee the erection of scaffolding himself. Since the site supervisor had no indication of any problem or potential problem with the delivery and assembly of the scaffold, he could not have anticipated the accident. To do so would be to apply a standard of perfection, not reasonableness.

In R. v. Petro-Canada the Ontario Court of Appeal held that (at Paragraph 20):

"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…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."

Conclusion

It is not reasonable to expect Cobra to contemplate every possible type of accident.

It was not reasonably foreseeable for Cobra to contemplate that a trained and experienced Mr. Pinto would fail to employ the methods and safety precautions for offloading the curb machine which had been employed by him on 26 previous occasions.

Cobra cannot be expected to take measures to avoid all possible causes of this incident, such as human error and/or mechanical failure - which are beyond Cobra's control.

It is submitted that Cobra Float Service Inc. took all reasonable care to avoid any foreseeable cause of this incident.

Order Requested by the Defendant

It is submitted that the Charge be dismissed by this court.

Analysis of the Court

This court will examine the evidence by review and analysis of (1) the issues & contextual background; (2) the applicable legal framework, and (3) the evidence presented at trial.

Issues

In addition to considering the positions of the Defendant and the Prosecution, the court is obliged to address the following questions in this strict liability case:

(a) Has the actus reus been proven by the Prosecution beyond a reasonable doubt for each of the charges articulated on Information # 6477?

(b) Has the Defendant established or mounted a due diligence defence to these charges on a balance of probabilities basis, assuming that the actus reus in (a) above has been proven on the standard set out above? (R v Lifchus, [1997] 3 S.C.R. 320).

Context

In 2005 workplace accidents took the lives of 852 people in Canada (see Workers' Compensation Boards of Canada). The Association reporting such statistics also reported that an average of 672 workers were injured every day in Canada in 2012. Despite these less than ideal statistics, the frequency of work-related injuries and deaths has fallen drastically since the 1980's – largely attributable to strengthened OHSA regulations. There is some concern that the numbers appear to be on the rise once again but generally the trend has been favourable.

The intent of the OHSA is to address workplace safety and to generally recognize and mitigate the imbalance of power between employers and employees or independent contractors. The legislative intent is to keep workers safe while in the workplace.

As a result of legislative intent and various cases decided since its inception, the establishment of the actus reus beyond a reasonable doubt is not an unattainable threshold to meet in such strict liability offences. No reliance need be made on whether or not individual workers are responsible or negligent in such accidents nor upon determining fault beyond employer responsibility. Causality is also not an element of such an offence. Once the actus reus has been proven to the satisfaction of the court, then it is open to the Defendant to argue that it reasonably believed in a mistaken set of facts that if true, would render the act or omission innocent, or that it has taken reasonable precautions to achieve compliance (due diligence defence).

In reality, the OHSA cannot achieve the unattainable goal of preventing all workplace accidents and the elimination of all risk to employees/workers. There is no duty on the part of the employer to anticipate every possible failure. In other words, neither the Prosecution nor the Defence should face the same fate as Sisyphus, king of Ephyra (Corinth) in Greek mythology who was punished and required to roll a large and heavy boulder up a steep hill only to find it coming back to him and repeating this frustrating and painful cycle for all eternity. Both defendant and prosecutor should not be subject to Sisyphean labours and the courts should strive to achieve a reasonable and fair balance between the rights and responsibilities of an employer and those of an employee in the workplace.

Equally so, the Provincial Offences Courts are not the arena to seek civil or criminal remedies – those are other matters for courts of competent jurisdiction. The best one could hope for here is to provide a fair ruling whilst being sensitive to the deceased's family and friends who may be here seeking answers and/or closure. Our sincerest sympathies and thoughts go to both with the deceased's family and friends but also with Cobra employees and owners who knew and worked with Mr. Pinto and who also must sense the loss and the gravity of this situation. Mr. Pinto lost his life in the course of his duties as an employee of Cobra Float, the defendant.

Applicable Legal Framework

The Occupational Health and Safety Act is public welfare legislation. It should be read liberally and broadly:

Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrower technical interpretations that would interfere with or frustrate the attainment of the Legislature's public welfare objectives are to be avoided.

Ontario (Ministry of Labour) v. Hamilton (City), [2002] OJ No. 283 (CA) at para 16, cited in R. v. Prince Metal Products Ltd, [2011] OJ No. 6450 (CJ) at para 42

Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc., 2010 ONSC 2013, [2010] OJ No. 1504 (SCJ) at paras. 20-24, leave to appeal refused 2011 ONCA 13, [2011] OJ No. 24 (CA).

More recently, the Court of Appeal for Ontario, in Ontario (Ministry of Labour) v. Dofasco Inc., stated:

". . . as was noted by Laskin J.A. in his decision granting leave to appeal in this case, "workplace safety regulations are not designed just for the prudent worker. They are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless." In our view, this principle also extends to deliberate acts of employees while performing their work."

Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769, [2007] OJ No. 4339 (CA) at para. 24, leave to appeal refused [2008] S.C.C.A. No. 24.

Duties of an Employer

Section 25(1) (c) of the Occupational Health and Safety Act requires employers to ensure that the measures and procedures required by the Act and Regulations are carried out at the workplace. As held by the Court of Appeal for Ontario in R. v. Wyssen, this means that the legislation

. . . puts an "employer" virtually in the position of an insurer who must make certain that the prescribed regulations for safety in the workplace have been complied with before work is undertaken by either employees or independent contractors.

R. v. Wyssen, [1992] OJ NO. 1917 (CA) at para. 14.

Strict Liability

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.

R. v. Sault Ste. Marie (City), [1978] 2 SCR 1299 at p.18.

R. v. Timminco Ltd., [2001] OJ No. 1443 (CA) at para.22-24, 26-27.

Actus Reus

R. v. Seeley & Arnill Aggregates Ltd., [1993] OJ No. 442 (Ont. Ct. (Gen. Div.)) at paras. 8, 15, 16.

Worker misconduct does not go to the actus reus of the offence, even when the worker deliberately disregarded safety training.

Ontario (Ministry of Labour) v. Dofasco Inc., supra at para.22.

The Crown is not required to prove that the employer knew of the danger. Foreseeability does not form any part of the actus reus.

R. v. Timminco Ltd., supra at para. 27

The Crown is required only to prove the elements of the offence: there is no requirement to prove how the accident happened. For example, in R. v. Prince Metal Products, a worker was killed after being crushed by a heavy coil of metal. The employer was charged with failing to ensure compliance with section 45(b) of the Industrial Regulation, which provides that "materials shall be transported, placed or stored so that they (i) will not tip, collapse or fall and (ii) can be removed without endangering the safety of any worker". The Crown was not required to establish whether the metal fell on the worker as she walked by it, or whether the worker was removing the metal when it fell. The fact that the metal crushed the worker was prima facie evidence of the actus reus of the offence. The trial court was not obliged to make a finding as to how the accident, happened, merely whether or not the Crown had proved the actus reus beyond a reasonable doubt.

R. v. Prince Metal Products Ltd., supra at para. 52, 54.

Similarly, in Ontario (Ministry of Labour) v. Cox Construction Ltd., the defendant had been convicted of failing to ensure the health and safety of a worker on a construction project: the fatal injuries sustained by the worker prima facie imported the actus reus. The fact of the injuries proved the endangerment.

Ontario (Ministry of Labour) v. Cox Construction Ltd., [2009] OJ No. 5976 (CJ) at para 47.

Due Diligence

Due diligence must relate to the particular breach of the legislation. General health and safety training does not establish due diligence regarding the specific hazard in issue.

R. v. Prince Metal Products Ltd., supra at para. 41, 63, 64.

Ontario (Ministry of Labour) v. Cox Construction Ltd., supra at para. 61.

R. v. Rio Algom Ltd., [1988] OJ No. 1810 (CA) at para. 31

For example, where there has been a failure to provide a guard where one is required, the only available defences are either that the defendant a) took all reasonable steps to provide a guard, or b) mistakenly believed that a guard had been provided. It is not a defence that the defendant did not believe a guard was required. This would be a mistake as to the requirements of the statute or the regulation, and is a mistake of law and does not provide a defence. As set out in Ontario (Ministry of Labour) v. Dofasco Inc.:

. . . Dofasco submits that it led evidence at trial making it clear that it has taken all reasonable steps to ensure that workers would not be endangered by the rollers and/or that it reasonably believed that the rollers did not present a hazard. Accordingly, it submits that the matter should be remitted to the trial court to determine this issue. We cannot accede to this submission. In our view, Dofasco did not lead evidence at trial that was capable of supporting a due diligence defence.

In relation to the first branch of the test, based on our interpretation of s. 25 of the Regulation as outlined above, Dofasco did not lead evidence that it had taken any steps to place a guard or other device at the pinch point as required. In these circumstances, Dofasco cannot show that it took all reasonable steps to avoid the incident.

As for the second branch of the test, Dofasco does not assert that it believed, mistakenly, that it had taken steps to place a guard or other device at the pinch point as required by the Regulation. Instead, it advances a strained interpretation of s. 25 of the Regulation to support a contention in law rather than fact that it complied with the Regulation. This does not meet the second branch of the test in that it is not a mistake of fact but rather a mistaken apprehension as to the requirements of the Regulation and the statutory regime.

Ontario (Ministry of Labour) v. Dofasco Inc. supra at paras.28-30.

Evidence of due diligence does not have to come out of the "mouth of the accused" or other defence witnesses. It can emerge from the Crown's case. (R. v. Ashton, [1985] O.J. No. 1795 (Dist. Ct.)). The court must also carefully consider that;

"narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided" (see Hamilton, para. 16).

With respect to the relationship between due diligence and foreseeability, the Court of Appeal for Ontario held in R. v. Rio Algom Ltd.,

The test which should have been applied is 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 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.

R. v. Rio Algom Ltd., supra at para. 25.

Every offence, whether its origins are criminal or regulatory, contains its own essential elements. A finding of guilt of any offence may only be made if the prosecutor establishes each essential element of the offence to the degree required by the applicable standard of proof. Prosecutor is bound by particulars; however there is a basic distinction between formal particulars and the prosecutors chosen theory of an accused criminal liability. The prosecutor's theory of the case is not something the prosecutor is bound to prove in order to establish guilt. The prosecutor's theory is neither an essential element of the offence nor a particular voluntarily supplied. The prosecutor is bound to prove the essential elements of the offence as charged beyond a reasonable doubt: Nothing more, and nothing less.

Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc. 2010 ONSC 2013, [2010] OJ No. 1504 (SCJ), leave to appeal refused 2011 ONCA 13, [2011] OJ No. 24 (CA) par 39, 41-44.

R. v. Khawaja 2010 ONCA 862, [2010] O.J. No.5471 par 143-145.

The prosecutor may modify his or her "theory" of the case as the trial progresses. The Crown has the right to modify its theory or strategy as the trial progresses and it would be unobjectionable for the Crown to adjust the theory of its case in response to the evidence at trial as it evolves.

R. v. Khawaja, supra par 144.

The trial judge is not bound by the theory of the Crown or the theory of the defence and can put alternative bases of liability, not advanced by either party provided they (those versions) are supported by the evidence.

R. v. Khan 2014 ONSC 5664, [2014] O.J. No. 6488 par 107.

Consideration of Circumstantial or Indirect Evidence

The danger in circumstantial cases is that the trier of fact will unconsciously "'fill in the blanks' or bridge the gaps in the evidence to support the inference that the Crown invites it to draw." As a result, it is important to remind oneself that "an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits." The trier of fact should consider other plausible theories and other reasonable possibilities that are inconsistent with guilt.

However, "'other reasonable possibilities' must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation." R. v. Skorput, [1992] O.J. No. 832 at pp. 5-6 (Prov. Div.).

Evidence Analysis – the Actus Reus

The court asks, has the actus reus been proven by the Prosecution beyond a reasonable doubt? The Prosecution is not obligated to prove causality, it is not an element of the offence (see Prince).

Even though no one actually witnessed this accident, the most reasonable inference is that the curb machine fell on the unfortunate Mr. Pinto while in the process of being off-loaded from the transport flatbed trailer. The court has reached this conclusion based on the following evidence. The flatbed trailer used to move the curb machine was located in close proximity to both the trailer and to Mr. Pinto which would imply that the process of loading/unloading the machine was not yet complete. There was no evidence to suggest that the curb machine was in its final position to begin extruding curbs at the job site. Though the court could speculate that some unknown individual tampered with the curb machine controls or was involved in any way with this accident, without any evidence would amount to pure speculation, not borne out of any of the evidence this court has heard (see Lifchus & Skorput). Having said this, the court must be cautious whenever using indirect or circumstantial evidence to prove a particular charge and to not be tempted to speculate or take on the role of either the Prosecutor of Defendant in any given case. (see Skorput).

As such, and given the liberal interpretation of the OHSA statutes and guidance provided by the common law, this court finds that the actus reus has been demonstrated or proven by the Prosecution beyond a reasonable doubt to this court.

This contrasts a portion of the argument made by defence counsel where counsel has suggested that the lack of details regarding the mechanical condition of the curb machine should raise reasonable doubt as to the actus reus (see para. 145 above). The court respectfully disagrees as this is not considered in the common law to be part of the elements to be proven. The employer or Defendant continues to bear the responsibility in the event of worker negligence and/or mechanical issues. Even though the Defendant did not own the subject curb machine, there is some evidence led by the Prosecution that the machine had been inspected months earlier and that Cobra, once accepting the assignment to move this machine, bore the responsibility to ensure that the controls on that machine were functional in order to ensure safety compliance during transport and loading/unloading.

In paragraph 148 above, once again, the defendant argues that 'the cause of the accident is lacking'. Defence counsel suggests that causation is a fundamental element to be proven beyond a reasonable doubt. Causation is not an element that requires proof beyond a reasonable doubt by the Prosecution (see Prince; also MOL v. Cox).

There can be some consideration of the cause of the accident with respect to the consideration of 'foreseeability' but that concept is examined within the envelope of a due diligence defence and not to determine proof of the actus reus (see Timminco; also Rio Algom).

The guidance provided by the legislature to the courts is to not frustrate the intent of the law (see citations in para. 222, above) for the protection and safety of workers while doing their jobs.

In this regard, and given the evidence this court has considered throughout this trial, it is the court's considered belief that the Prosecution has met its burden and that the actus reus has been proven beyond a reasonable doubt.

The remaining issue to be determined is whether or not, given proof of the actus reus, the Defendant has proven on a balance of probability basis that the defence of due diligence has been established thereby rendering the act innocent or if the Defendant can show that it took all reasonable steps to avoid a particular event (see Sault Ste. Marie; also Timminco).

At the outset, it was apparent to this court that this was the more difficult of the two issues to be decided by the court. This court would examine any evidence (present or absent acts) with respect to the company's actions (or inaction) as well as whether or not the accident could have been reasonably foreseen by the Defendant.

Defence counsel argued (see para. 155 above) that in R. v. Algoma, the Court of Appeal ruled that though an employer or supervisor was under a duty to foresee all reasonable dangers that may arise, that did not mean that they were under a duty to contemplate every possible type of accident.

The evidence in the case at hand was that Mr. Pinto was a highly regarded, experienced driver and loader/unloader of curb machines and had successfully unloaded curb machines from such trailers a total of 27 times before this particular incident. He joined Cobra with previous experience which could be inferred by the 'test' given to him by Cobra's owner, Mr. Martellacci on the first day of his interview; that being that Mr. Pinto could get the job if he successfully demonstrated his ability to unload the curb machine. He passed the test and was employed by the owner. One could reasonably infer that Mr. Pinto had previous experience with performing this difficult maneuver.

The evidence in this case, advanced by both the Prosecution and the Defence and evident from the photograph Exhibits tendered, was that the provided block of wood normally used to create a ramp or step-down for loading and unloading this machine was conspicuously absent. Multiple pieces of wood of various sizes were provided and available on the flatbed trailer. None of these pieces were evident where one would expect to see one, on the ground at the back of the trailer where the machine was unloaded. Both sides have reached the same conclusion, that Mr. Pinto did not use the wood on that fateful day to create a ramp to help safely unload the curb machine. It left the court to wonder, that since the Defendant and others had been instructed to use the wood when unloading and loading curb machines, all witnesses at trial agreed that without the use of that wood, the maneuver would be considered unsafe. Mr. Pinto appeared to deviate from the standard of practice that others and he himself followed on previous occasions.

In Proboard (para. 159) the Court determined that the injured employee knew the rules but did not follow those rules. The court consequently ruled that the danger was not reasonably foreseen by the employer and as such, the defence of due diligence had been established by the defendant.

This court would have reached an entirely different ruling (all else being equal) had the wood ramp been used and had broken or fractured under the weight of the machine. Under those circumstances, one might reasonably conclude that such a device was not deemed adequate for the task at hand. That was not the case here.

Furthermore, the court has noted that there was no widely accepted and/or available ramp system in existence that would form the standard by which companies could be measured against. Given the 'gooseneck' attachment that necessitated a gap be present in the trailer, there would be no ability to use a continuous ramp to assist with the unloading/loading of the machine. The crown's own witnesses agreed that if done properly, the wood block used as a ramp would be effective in loading and unloading if done carefully.

The Crown's witness, the engineer (expert witness) concluded that the trailer was not appropriate to be used to move this type of equipment however went on to say that he was not convinced that there was a better or more appropriate system available in the marketplace.

As a witness, his evidence was somewhat limited in the sense that he had never observed the loading and unloading procedure and did not review/examine the mechanical condition of this particular curb machine.

The prosecution pointed out that there was no specific training course given to Mr. Pinto when he joined the company and that it should negate the conclusion that the company was duly diligent.

Apart from the fact that there were no training courses available and accepted in the marketplace, Mr. Pinto had demonstrated his experience and ability from the outset to the Defendant. As the courts ruled in MacMobile Welding (para. 161), an employer could rely on the experience of a worker. In fact the court concluded that the more experience a worker had, the less foreseeable an accident would be by that employer.

The witnesses all agreed that loading or unloading the curb machine could only be done safely if the controls were set to 'manual' and not 'automatic.' The automatic setting when unloading and loading that curb machine could cause the machine itself to make corrections and thereby 'dance' which could cause it to tip over. As the evidence demonstrated, for some unknown reason, the controls were left on 'automatic'. Though the prosecution does not need to establish causation to prove the actus reus, the court is entitled to consider this evidence and its implications when examining the issues of foreseeability and due diligence.

The controls being set to automatic and the non-use of the wood to establish a ramp to unload this machine would have made Mr. Pinto's handling of the machine dangerous. It is inexplicable why Mr. Pinto deviated from the accepted practice, and from his own practice on so many previous occasions.

The prosecution's position was that the use of the block of wood to create a ramp was a type of informal 'home-made' solution which should have been considered unsafe. The prosecution believed that the lack of specific training for Mr. Pinto and use of this home-made ramp formed part of a culture of complacency leading to unsafe practices and potential accidents. This should have been reasonably foreseen by the Defendant.

Despite the fact that Mr. Martellacci could have presented better while on the witness stand, and could have established a more formalized training protocol within his company, his approach is one that is shared by many small to medium sized companies. These smaller concerns, in general typically have less resources to devote to formalized training (if any existed) but that does not necessarily mean that he was exposing his workers to foreseeable risks and dangers. In fact the court must be careful not to measure the practices of smaller concerns against those of larger companies with far more resources as it might lead to potential prejudice and be antithetical to the very noble purposes that the court (and the MOL) would wish to uphold.

This court had noted that;

(a) There was no standard, accepted equipment for either the ramp or the transport trailer. In other words it would be difficult to argue that this Defendant was departing from the accepted standards and norms in this particular industry.

(b) The company held regular safety meetings (see para. 177);

(c) It was widely known that the block of wood to be used as a ramp was critical and the non-use of this equipment was deemed unsafe and Mr. Pinto was equally aware of this fact;

(d) There were no formal educational courses that one could take with respect to loading and unloading curb machines (see para. 202);

(e) The company encouraged workers to discuss any concerns including safety concerns and provided a forum for those discussions at regularly scheduled meetings;

(f) Mr. Pinto had previous experience and had successfully moved the curb machine 27 times prior to this incident (the court might have reached an entirely different conclusion had the evidence shown that the accident occurred at the beginning of Mr. Pinto's employment);

(g) There was no evidence tendered (for or against) to suggest that this is an industry wide safety issue or that this had occurred in any previous interactions between the MOL and Cobra;

(h) Mr. Vieira (day 2 trial evidence, witness #2) admitted seeing the manual for this machine and that the maximum height when in motion was NOT to exceed 12 inches yet on the day of the accident, the machine was 24 inches high and beyond or outside acceptable safety limits. Mr. Pinto was provided with this safety manual as well. As well, Mr. Pinto was experienced and had practical on-the-job experience which would have made the accident much less foreseeable by the defendant.

Given the reasoning above, and with all due respect to Mr. Pinto, his family's loss and the noble intent of the MOL, whose goal it is to keep workers safe and workplace accidents to a minimum, this court finds that despite the proof of the actus reus, the defence of due diligence has been established by the defendant on a balance of probabilities basis to this court, and the charge before this court will be endorsed as dismissed.

These written reasons are respectfully submitted to the Prosecution, the Defendant and filed with the Court on November 15th, 2017.

Gerry Manno

Justice of the Peace