Court Information

Ontario Court of Justice

Date: November 14, 2017

Between:

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

-and-

Thomson Metals and Disposal GP Inc. (Operating in partnership, as Thomson Metals and Disposal LP) (Defendant)

Heard Before: Gerry Manno, Justice of the Peace

Hearing Dates: March 2, April 4, 10 & May 5, 2017

Reasons for Judgment Released: November 14, 2017

Counsel:

• For the Defendant: A. Miedema
• Co-Counsel for the Defendant: C. Rasmussen
• Counsel for the Crown (Ministry of Labour): K. Ballweg

Background & Charges Before the Court

(1) The Accident and Investigation

On or about June 4, 2014, Thomson Metals and Disposal GP Inc. (operating in partnership as Thomson Metals and Disposal LP), as an employer at 961 Zelco Drive in Burlington, Ontario, had one of their employees operating a 325B Caterpillar Excavator when an accident occurred. The excavator fell forward and the cab portion of the excavator housing the employee/operator became unhinged or separated from the rest of the machine, thereby causing and/or contributing to injury to the worker (Mr. Martin). Subsequent investigation by the Ministry of Labour inspectors revealed that the operator of this excavator was not wearing a seat belt and the bolts and washers used to secure the cab portion to the balance of the equipment were unsuitable and not in accordance with manufacturer's specifications. Charges resulted and are articulated on Part III Information # 159272.

(2) Ministry of Labour Investigation

The Ministry of Labour (hereinafter also referred to as 'MOL', 'Prosecutor' or 'Crown') dispatched an inspector to secure the site where the accident occurred and commenced an inspection and analysis of the accident on behalf of the MOL.

(3) Charges Laid

Following the inspection and analysis of the site and the excavator in question, the MOL laid three charges under Part III Information # 159272, which was sworn to on May 13, 2015.

(4) Trial Scheduling

During the balance of 2015 and 2016, a number of court visits were recorded for the purposes of speaking to this matter and to schedule and complete two Judicial Pre-Trials. In August of 2016, this matter was scheduled for a lengthy six-day trial beginning on April 4, 2017 and completing May 29, 2017. This court and the respective parties were able to complete the trial in 4 of the 6 days scheduled.

(5) Offences Charged

The Defendant was charged with the following offences under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended (also hereinafter referred to as the 'OHSA'):

Count 1

Thomson, failing as an employer to ensure that the equipment, materials, and protective devices provided by the employer were maintained in good condition at a workplace located at 961 Zelco Drive, Burlington, Ontario, contrary to s. 25(1)(b) of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1, as amended.

Particulars: The defendant failed to ensure that a Caterpillar 325B excavator was equipped with a seat belt.

Count 2

Thomson at 961 Zelco Drive, Burlington, Ontario L7L 4Y3, on or about the 4th day of June, 2014, at the City of Burlington, in the Central West Region, in the Province of Ontario, did commit the offence of failing as an employer to ensure that the equipment, materials and protective devices provided by the employer were maintained in good condition at a workplace located at 961 Zelco Drive, Burlington, Ontario, contrary to s. 25(1)(b) of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1, as amended.

Particulars: The defendant failed to ensure that the operator cabin of a Caterpillar 325B excavator was securely fastened to the chassis.

Count 3

Thomson at 961 Zelco Drive, Burlington, Ontario L7L 4Y3, on or about the 4th day of June, 2014, at the City of Burlington, in the Central West Region, in the Province of Ontario, did commit the offence of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker, at a workplace located at 961 Zelco Drive, Burlington, Ontario, contrary to section 25(2)(h) of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1, as amended.

Particulars: The defendant failed to take the reasonable precaution of ensuring that bolts used to fasten the operator cabin of an excavator to the chassis met the manufacturer's specifications; and/or; The defendant failed to take the reasonable precaution of ensuring that washers used to fasten the operator cabin of an excavator to the chassis met the manufacturer's specifications.

Exhibits

(6) List of Exhibits Tendered During the Course of the Trial

Exhibit	Description
1	Agreed Statement of Facts
2	Legislative Inserts Book
3	Company Searches – Ontario
4	Limited Partnership Report
5	Photos of MOL Inspector, marked (a) to (l)
6	General Employee Information for Mr. M. Martin
7	Field Visit Report (2 pgs.)
8	Receipt for Things Removed
9	Photos of inspector #2 Mr. Sebastian
10	Work order
11	Safety Inspection Certificate
12	MOL – Safe at Work Ontario
13	Inspector Sebastian Photos
14	Field visit report dated June 9, 2014
15	Email from Kirk Jensen to Sebastian Kelly on parts and specifications for bolts and nuts used
16	Service Information System
17	Operators Manual
18	Sales and service Detail
19	Pay Stub for injured worker given to inspector by injured worker's wife, Mrs. Martin
20	Handwritten notes of Mr. Sebastian (Inspector #2)
21	Mr. Sebastian's notes for June 23, 2014
22	Investigation Report
23	Close up diagram also found in Exhibit 17 above
24	Frame and Body pg. 405
25	pgs. 411 & 412
26	Handwritten notes from Inspector
27	Service Information System (pg. 327)
28 (a) and (b)	Photos from hard copy of owner manual
29	Field visit report
30	Page a20 from General Information Page of older written paper (hard copy) manual
31	Excerpt from Parts Manual for Excavator
32	Appendix A – photos taken by Faisal Khan inspector
33	Curriculum Vitae of Faisal Khan
34	Faisal Khan investigation report

Witness List

(7) Crown Witnesses

• Crown Witness #1: Mr. Geoffrey Howard – inspector with the MOL
• Crown Witness #2: Mr. Kelly Sebastian – inspector with the MOL
• Crown Witness #3: Mr. Desroches – Mr. Martin's (injured worker) supervisor
• Crown Witness #4: Mr. Kirk Jensen – worked for Defendant, mechanic & maintenance Supervisor
• Crown Witness #5: Mr. Kyle Pelrine – mechanic
• Crown Witness #6: Mr. Stephen Leathley – a dealer for Caterpillar/Tormount
• Crown Witness #7: Mr. Faisal Khan – mechanical engineer

Applicable Statutes and Case Law

(8) Applicable Statutes, Common Law Citations & Authored Materials Consulted

Legislation

• Occupational Health and Safety Act, R.S.O. 1990, c.O.1, as amended
• Occupational Health and Safety Act, R.R.O. 1990, Regulation 856
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Secondary Sources

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

Common Law

• R. v. Ashton, [1985] O.J. No. 1795 (Dist. Ct.)
• Ontario (Ministry of Labour) v. Cox Construction Ltd., [2009] O.J. No. 5976 (C.J.)
• Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769, [2007] O.J. No. 4339 (C.A.), leave to appeal refused [2008] S.C.C.A. No. 24
• Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc., 2010 ONSC 2013, [2010] O.J. No. 1504 (S.C.J.), leave to appeal refused 2011 ONCA 13, [2011] O.J. No. 24 (C.A.)
• Ontario (Ministry of Labour) v. General Motors of Canada Ltd., [1991] O.O.H.S.A.D. No. 11
• Ontario (Ministry of Labour) v. Hamilton (City), [2002] O.J. No. 283 (C.A.)
• R. v. Kienapple, [1975] 1 S.C.R. 729
• R. v. Khan, 2014 ONSC 5664, [2014] O.J. No. 6488
• R. v. Khawaja, 2010 ONCA 862, [2010] O.J. No.5471
• R. v. Komatsu Rents, 2008 ONCJ 551, 2008, O.N.C.J. 551
• R. v. Lifcus, [1997] 3 S.C.R. 320
• R. v. Petro-Canada, [2003] O.J. No. 216
• R. v. Prince, [1986] 2 S.C.R. 480
• R. v. Prince Metal Products Ltd., [2011] O.J. No. 6450 (C.J.)
• Ontario (Ministry of Labour) v. Quinton Steel (Wellington) Limited, 2014 ONCJ 713, 2014 O.N.C.J. 713
• R. v. Rio Algom Ltd., [1988] O.J. No. 1810 (C.A.)
• R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299
• R. v. Saunders, [1990] 1 S.C.R. 1020, 56 C.C.C. (3d) 220
• R. v. Seeley & Arnill Aggregates Ltd., [1993] O.J. No. 442 (Ont. Ct. (Gen. Div.))
• R. v. Timminco Ltd., [2001] O.J. No. 1443 (C.A.)
• R. v. Wyssen, [1992] O.J. No. 1917 (C.A.)

Decision of the Court

All three charges on Information #159272 are to be dismissed. Reasoning below.

Crown (MOL) Position

(9) Crown Position (from Submitted Factum)

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).

(10) Court of Appeal Guidance on Workplace Safety

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.

Legal Framework

Duties of an Employer

(11) Employer Responsibility

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

(12) Nature of Strict Liability Offences

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.

(13) Actus Reus

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

(14) Worker Misconduct

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.

(15) Foreseeability Not Required

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.

(16) Proof of Elements Only

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.

(17) Fatal Injuries as Prima Facie Evidence

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

(18) Due Diligence Must Relate to Specific Breach

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.

(19) Mistake of Law vs. Mistake of Fact

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.

(20) Due Diligence and Foreseeability

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 Prosecution's Theory, Particulars and Proof of Guilt

(21) Essential Elements and Particulars

(a) 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.

(b) 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.

(c) 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.

Defendant's Position

(22) Defendant's Position (from Defence Factum)

ISSUE: HAS THE CROWN PROVED THE ACTUS REUS BEYOND A REASONABLE DOUBT?

This is a case about whether the Crown has proven the actus reus of the charges beyond a reasonable doubt. If the Crown cannot prove the actus reus beyond a reasonable doubt, the charge should be dismissed: R. v. Lifchus, [1997] 3 S.C.R. 320. In summary, it is our submission that the Crown has failed, on each of the three charges, to prove the actus reus beyond a reasonable doubt. The machine came with a seat belt when purchased by Thomson Metals, or the machine did not have a seat belt immediately prior to the accident.

(23) "Failure to Maintain" Charge (Count 2)

(a) There is no evidence of any maintenance requirements that the Defendant breached.

(b) Inspector Sebastian admitted that this charge essentially alleges the same thing as Count 3 (the "bolts and washers" charge).

(c) The evidence is that bolts and washers were "to spec".

(d) There is no evidence that bolts and washers were not suitable.

The Charges should, in the Defendant's submission, be dismissed because the Crown has not established the actus reus of any of the charges.

(24) "Bolts and Washers Not to Spec" (Count 3)

(a) The evidence is that bolts and washers were "to spec."

(b) There is no evidence that bolts and washers were not suitable.

The Charges should, in the Defence's submission, be dismissed because the Crown has not established the actus reus of any of the charges.

(25) The Seat Belt Charge (Count 1)

The charging section of the OHSA alleges failure to ensure that:

(a) S. 25(1)(b): "equipment, materials and protective devices provided by the employer are maintained in good condition."

(b) The particulars of Count 1 allege a failure to ensure that the machine was equipped with a seat belt.

(c) No provision of the Occupational Health and Safety Act ("OHSA") or regulations requires that this machine have a seat belt.

(d) In fact, the Roll-over Protective Structures ("ROPS") regulation (RRO 1990, Reg. 856) under the OHSA requires that some specified types of equipment have a seat belt. The parties appear to agree that the ROPS regulation does not require that the Caterpillar 325B in this case have a seat belt.

(e) Ministry of Labour ("MOL") didn't charge the Defendant under that regulation.

(f) Inspector Sebastian admitted that the ROPS regulation did not apply to the machine in this case.

(g) The Crown cannot use a general charge to impose a specific obligation (here, to have a seat belt) that the legislature / cabinet decided not to impose in a regulation (see Komatsu decision below).

(h) The Crown has not proven that the machine came with a seat belt:

(i) Inspector Sebastian stated in chief that his initial information from Kirk Jensen was that the 325B was not equipped with a seatbelt. In cross-examination he advised that he did not follow up with Kirk Jensen as to why he said that.

(ii) None of the witnesses testified that the machine ever had a seat belt.

(iii) "Blue manual" (for modified machine) alluded to by Inspector Sebastian and Mr. Leathley was not in evidence.

(iv) Mr. Leathley testified, in chief, that there were different sizes and different models / special applications for Caterpillar equipment – so there is some doubt as to whether the proper manual was even in evidence.

(v) Mr. Leathley also testified that there were "multiple applications."

(vi) There was not, in evidence, any page from any manual that stated that the modified machine (with riser) came with a seat belt.

(vii) To add even more confusion and doubt as to whether the machine came with a seat belt when purchased, Engineer Khan testified about a "service manual" but no "service manual" was put into evidence.

(viii) Inspector Sebastian stated in cross-examination that there was confusion regarding the manual.

(ix) Original manual has more than one rendering of a seat: One appears to have a seat belt, and one not.

(x) None of the photos in the Crown Disclosure clearly show a mounting point for a seat belt.

(xi) Mr. Leathley testified that "had the company ordered the seat assembly, 126-3893, it would have come with a seat belt". But he did not say which seat assembly the machine came with when purchased.

(xii) He did not testify that this particular machine, which Thomson Metals purchased, came with a seat belt.

(xiii) He testified that the parts manuals can show multiple seats, and that you need to go back to the original part number to find out "what the machine came with". However, he did not do so.

(xiv) Mr. Leathley mentioned an "arrangement number" that he said could have been used to determine "what the machine came with", but the Crown did not have Mr. Leathley use the "arrangement number" to determine what parts were on this machine. There should be an adverse inference against the Crown that the use of the "arrangement number" would have shown that the machine did not come with a seat belt.

Secondly, the Crown has not proven that the machine did not have a seat belt immediately prior to the accident:

(xv) Inspector Sebastian did not inspect for the seat belt until 14 days after the accident.

(xvi) Inspector Sebastian did not ask paramedics whether they cut out seat belt.

(xvii) Inspector Howard testified in chief that he would have expected to see the seat belt hanging down, but that he has in the past, in other cases, seen the seat belt wedged in the seat.

(xviii) No witnesses testified that they inspected the machine on the day of the accident and determined that it did not have a seat belt.

(xix) As such, the Crown has not proven that the machine did not have a seat belt at time of accident.

(xx) Accordingly, the Crown has not proven the actus reus beyond a reasonable doubt.

Law: Seat Belt Charge

(i) Inspector Sebastian testified that he inspected the seat for a seat belt on June 18, 2014, 14 days after the date of the accident.

The case of R. v. Komatsu Rents, 2008 ONCJ 551 involved a charge of failing to ensure that a machine supplied under rental complied with s. 3(1) of O. Reg 856/90, which provides that, inter alia, machines to which the regulation applies must be equipped with a restraining device. In that case, J.P. Hodgins stated at page 30:

"Although it is easy for the court to lose sight of the onus, the court does recognize the crown's obligation to prove all of the elements of the offence and in this case must satisfy the court beyond a reasonable doubt that the seatbelt for the dozer was not installed on the dozer at the time of rental."

and at page 33:

"In conclusion the court (sic) asks this court to believe that because the seat belt was missing on May 12, 2006, and that the holes where the bolts go are rusted to draw the inference that the seatbelt was not or could not have been attached on May 1st, 2006. This court has heard and accepted the testimony of Mr. Roy, without convincing evidence to the contrary.

Did Mr. Poulin remove the seat to perform any repairs? Did he remove the seat belt as it was aggravating his style of operation of the dozer? These are all reasonable questions under the circumstances, the answer of which this court cannot provide from the evidence accepted. Did the movement of the dozer by the excavator affect the transmission linkage, and did the pull stop knob or handle just fall off in the days it was on the job site on Beckers Road?"

Upon applying the R v Lifchus, [1997] 3 S.C.R. 320 test in regards to proof beyond a reasonable doubt, it is a finding of this court that the crown failed to prove the actus reus of these offences beyond a reasonable doubt and SMS Construction and Mining Systems Inc. is acquitted on all matters before this court."

(j) Secondly [sic] thirdly, it is not appropriate to use more general "failure to maintain" charge where a regulation deals with specific subject matter:

Ontario (Ministry of Labour) v. Quinton Steel (Wellington) Limited, 2014 ONCJ 713, para. 47 (quoting Adjudicator Blair in General Motors):

"However, where the Regulations clearly address a specific subject matter . . . unless there is something distinctive about a particular workplace setting which renders the applicable regulation manifestly inadequate to deal with those unique circumstances, it would be contrary to the principles of the Act to use subsection 14(2)(g) [now 25(2)(h)] to amend the Regulations."

(26) Counts 2 and 3: Failure to Maintain Machine / Bolts and Washers Not to Spec

The Crown's theory was the same for Counts 2 and 3: that the bolts and washers were not to spec, which is why the cab fell forward. Inspector Sebastian agreed that Count 2 and Count 3 are really the same. Inspector Sebastian agreed that Crown is asserting two things in these two charges:

(a) the bolts and washers didn't meet the manufacturer's specifications, and

(b) therefore, the bolts and washers were not suitable.

The Defendant agrees that the Crown is required to prove both of those things, because the mere fact that bolts and washers were not to spec does not mean that the defendant "failed to maintain" the equipment (Count 2), or that the employer failed to take appropriate precautions (Count 3). That is, the fact that bolts and washers were not to spec would not automatically mean that they were not suitable to secure the cab to the chassis. The Crown's two-part theory is entirely consistent with the way that the Crown attempted to advance its case, and with the reports of Inspector Sebastian and Engineer Khan. The Crown offered no other theory, and called no other evidence. Engineer Khan's conclusion, on page 3 of his Engineering Report, was clear:

"This report concludes that the most likely cause of the incident that was the failure of the bolted joint that locked the operator cabin structure to the locking place on the excavator chassis. The joint failed due to the reduction of clamp force holding the joint caused by the use of bolts and washes that had mechanical properties that were less what [sic] were specified by the manufacturer."

(27) Summary of Defence Position

In summary, the Defendant submits that the Crown has not proven any of the charges beyond a reasonable doubt. As such, the Defendant respectfully requests that all three charges be dismissed.

Analysis by the Court

Issues to be Examined

(28) Questions for the Court

In addition to considering the positions of the Defendant and the Prosecution, the court is obligated 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 # 159272?

(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? On a related basis, is it open to the court to impute or infer a due diligence defence from the evidence accepted in a trial despite the fact that a Defendant/Counsel has clearly opted to NOT formally call a due diligence defence?

(c) Can the prosecution/crown rely on a general provision under the OHSA (count #2) when they have chosen to lay the same charge in the general sense in count #3? This is partly based on the fact that MOL inspectors have clearly stated that counts (2) and (3) originate from the same basic set of facts and rely on the same elements and causal links that brought them to lay these particular charges.

Additionally, in the event that this court finds the Defendant guilty on both counts (2) and (3) would Kienapple apply? In the corollary, if the court dismisses one of those counts is it entitled to find the Defendant guilty on the remaining count without creating an absurd result?

Legal Framework and Context

(29) Workplace Accident Statistics

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.

(30) Positive Trend in Workplace Safety

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 (Toronto Star, Sept. 4, 2017).

(31) Intent of the OHSA

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.

(32) Establishing Actus Reus

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).

(33) General Duty Clause

With respect to Count #2 on the Information, section 25(2) of the OHSA is often referred to as a 'general duty' clause. It is purposely broad in its wording, the implication being that employers must use an objective standard to take every precaution with respect to a worker's protection. It is often used by OHSA inspectors and prosecutors, particularly when there are no applicable sector-specific regulations (see Quinton Steel, pg. 5).

(34) Avoiding Narrow Interpretations

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).

(35) Reasonable Balance

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 (see Petro Canada, para. 172). 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.

(36) Importance of Particulars

Common law emanating from the Supreme Court of Canada also requires the use of particulars when necessary, and, where they are present, particulars form part of the charge itself. This was made clear in Saunders wherein Justice McLachlin stated at pg. 223 of that decision:

"It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved…the crown chose to particularize the offence in this case…Having done so, it was obliged to prove the offence as particularized. To permit the crown to prove some other offence characterized by different particulars would be to undermine the purpose of providing particulars."

This court believes that these same principles hold true for matters decided in the Provincial Offences courts where defendants deserve the right to know and to be able to defend against specific concerns within the general envelope of legislative intent – which is to ultimately provide protection for workers while in their workplaces.

(37) The Kienapple Principle

The Kienapple principle was first introduced in the decision of the Supreme Court of Canada in R. v. Kienapple, [1975] 1 S.C.R. 729 ... as that decision was explained in a unanimous judgment of a seven-member division of that Court, delivered by Chief Justice Dickson in R. v. Prince, [1986] 2 S.C.R. 480 ...

In R. v. Prince, Chief Justice Dickson outlined the double test in these words at p. 495:

"There must be a relationship of sufficient proximity firstly as between the facts, and secondly as between the offences, which form the basis of two or more charges for which it is sought to invoke the rule against multiple convictions."

(38) Application of Kienapple

(a) ... the requirement of sufficient proximity between the offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is ought to be precluded by the Kienapple principle.

(b) There is, however, a corollary to this conclusion. Where the offences are of unequal gravity, Kienapple may bar a conviction for a lesser offence, notwithstanding that there are additional elements in the greater offence for which a conviction has been registered, provided that there are no distinct additional elements in the lesser offence.

(c) ... there are four clear keys to when the Kienapple principle should be applied, other than the long-standing case of included offences:

(i) Where the offences are of unequal gravity, Kienapple may bar a conviction for a lesser offence, notwithstanding that there are additional elements in the greater offence for which a conviction has been registered, provided that there are not distinct additional elements in the lesser offence;

(ii) Where an element of one offence is a particularization of essentially the same element in the other offence;

(iii) Where there is more than one method, embodied in more than one offence, to prove a single criminal act;

(iv) Where Parliament has deemed a particular element to be satisfied on proof of another element;

(See http://www.westlawnextcanada.com/blog/insider/phrase-of-the-week-kienapple-principle-205.)

(39) Kienapple Principle Definition

The Kienapple principle, which provides that where the same transaction gives rise to two or more convictions on offences with substantially the same elements, the accused should be convicted only of the most serious offence: R. v. Kienapple (1974); and R. v. Kinnear (2005), at para. 28.

(40) Kienapple and Identical Physical Acts

The Kienapple principle provides that where the physical acts related to one count are identical to those that pertain to a second charge, the rule against multiple convictions is engaged and a stay of proceedings is entered.

R. v. C. (M.), 2012 ONSC 2505, 2012 Carswell Ont. 4918 at para. 21.

The Evidence and Analysis of the Court

Count #1: Seat Belt Charge

(41) Count #1 Charge

"That Thomson failed as an employer to ensure that the equipment, materials, and protective devices provided by the employer were maintained in good condition at a workplace located at 961 Zelco Drive, Burlington, Ontario, contrary to S. 25(1)(b) of the OHSA, R.S.O. 1990, c.O.1, as amended.

Particulars: the Defendant failed to ensure that a Caterpillar 325C excavator was equipped with a seat belt."

(42) Physical Evidence of Seat Belt

This particular excavator was purchased in 1998 and utilized in 1999. Photos (K) to (L) in Exhibit #5 show no signs of a seat belt assembly mechanism. There is no clasp, no belts and no assembly in evidence.

(43) Failure to Investigate Immediately After Accident

Also accepted into evidence is the fact that no one made inquiries of emergency personnel who attended the site shortly after the accident to tend to the employee/operator's injuries, specifically as to whether they had to extricate the injured worker from the seatbelt or whether or not they observed a seatbelt at the scene. In fact during the second day of this trial, MOL inspector Sebastian testified that between June 5, 2014 (the day following the accident) and June 18, 2014, no one from the MOL had inspected the equipment in question to confirm or dispel the notion that a seat belt was in the operator's cab.

(44) Inspector's Admission

Furthermore, under cross-examination, Mr. Sebastian (MOL inspector) admitted that this particular model of excavator was not equipped with a seat belt.

(45) Inspector's Notes

An examination of Exhibit 26, about mid-way down the page a statement was made by the Inspector in his notes that: "no seat belts installed at time of manufacturing."

(46) No Proof of Installation

The Inspector under cross-examination also agreed that nothing in the investigation or in the literature associated with this model of excavator proved or established beyond a reasonable doubt that the seat belt assembly was ever installed in this particular machine's cab area.

(47) Conflicting Manual Diagrams

The owner's manuals, pages of which are contained in the exhibits to this trial, are somewhat confusing in the sense that one diagram showed that the seat belt assembly was present and attached to the operator's chair, while a second diagram in the same manual depicted the operator's chair with NO evidence of a seatbelt (see Exhibit 31 diagrams 1143 vs. 1140 for comparative purposes).

(48) Reliance on Online Manual Only

Mr. Sebastian, while testifying, provided viva voce evidence that counts #2 and #3 resulted from the same facts regarding the bolts and the washers that fastened the operator cab to the chassis and Inspectors had formed that probable ground based on viewing the on-line owner's manual specifications vs the measured specifications of the bolts and washers retrieved from the accident site. The Inspector admitted that no reference or comparison was made to the paper owner's manual that was provided with the excavator upon the equipment purchase. Charges were laid based solely on the on-line manual specifications.

(49) Consideration of Withdrawal

Mr. Sebastian also admitted that the MOL had considered withdrawing these charges at one juncture but decided against that consideration.

(50) Witness Recollection

Both Mr. Jensen & Mr. Pelrine (subsequent Crown witnesses) had no independent recollection regarding the existence of a seat belt.

(51) Paper Manuals Provided at Purchase

Mr. Leathley (crown witness #6 – employed with Caterpillar's dealer Tormount) confirmed that the paper owner's manuals were distributed with the equipment/machinery upon purchase. Subsequent to this purchase, the company Caterpillar decided to do away with paper manuals and placed all owner manuals on-line. Purchasers of Caterpillar equipment could sign up to view and access these manuals for an annual subscription fee but that the service was voluntary.

(52) No Safety Bulletins Issued

Mr. Leathley went on to add that any safety issues or product recalls were handled by issuance of a security bulletin to all owners irrespective of whether they had signed up to access on-line manuals. He testified that there were NO security issues identified nor any bulletins issued with respect to the seat belt assemblies and/or with respect to the washers and bolts used to secure the operator's cab to the chassis (counts 2 & 3 on the Information).

(53) Comparison Only to Online Manual

All of the Crown witnesses who testified agreed that these charges were laid based on the MOL inspectors comparing the on-line manual specifications with the inspection of the excavator itself. No one examined the original owner's manual that came with the purchase of the excavator nor did they compare the washer and bolt specifications between the on-line manual with the physical paper manual issued years earlier.

(54) Court's Finding on Count #1

Based on the viva-voce evidence heard and accepted by this court, along with the tendered exhibits, this court is left with some reasonable doubt as to whether or not a seat belt was issued or required on this particular excavator. The crown has not met its onus in proving the actus reus to this court beyond a reasonable doubt and this count, count #1 on the Information will be dismissed.

(55) End Purchaser Obligations

The Prosecution's witnesses also established that end purchasers of this machinery were not required to refer to the on line manual nor were they required to utilize Original Equipment Manufacturers (OEM) parts when parts needed replacement.

Count #3: Bolts and Washers Not to Spec

(56) Count #3 Charge

"Thomson Metals & Disposal Inc., (at the same time, date and place) did commit the offence of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker, at a workplace located at 961 Zelco Drive, Burlington, Ontario, contrary to Section 25(2)(h) of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1, as amended.

Particulars: The defendant failed to take the reasonable precaution of ensuring that bolts used to fasten the operator cabin of an excavator to the chassis met the manufacturer's specifications; and/or,

The defendant failed to take the reasonable precaution of ensuring that washers used to fasten the operator cabin of an excavator to the chassis met the manufacturer's specifications."

(57) Definition of Manufacturer's Specifications

There is no one overall accepted definition of the phrase 'manufacturer's specifications'. In general manufacturer's specifications represent the technical specifications contained in a document that lays out characteristics of a product such as levels of quality, performance, safety or dimensions (General Agreement on Tariffs and Trade definition – GATT).

(58) Specifications at Issue

In this particular case, the specifications utilized by Inspectors to determine suitability had to do with the length of the bolts being utilized and/or pertaining to the thickness/hardness or the washers that were placed on the floor of the operator's cab used to secure the cab to the chassis using said bolts and washers attaching to metal plate(s) on the chassis.

(59) Crown's Two-Part Theory

In effect, as mentioned in the Defendant's factum, that for both counts #2 & #3, the Crown/Prosecution is asserting that the bolts and washers did not meet manufacturer's specifications and as such, the bolts and washers were not suitable.

(60) Engineer Khan's Report

Mr. Khan's (witness #7) report (on page 3) found that the likely cause of the incident was due to the bolted joint that locked the operator cabin to the chassis failed. The failure occurred because the bolts and washers used had mechanical properties that were less than specified by the manufacturer.

(61) Crown's Position on Causation

Despite the Khan report which articulates a possible cause for the operator cab separation, the Crown maintained, throughout the trial, that it was under no obligation to prove the cause of the accident.

(62) Specifications Comparison

Did the bolts and washers meet manufacturer's specifications? From the way these charges were initiated, the court was led to believe from the evidence that the on-line manual was used to establish the correct specifications for the bolts and washers. Those specifications differed from the bolts and washers recovered from the accident site. Charges were laid after inspectors found that the bolts used were four inches as opposed to 6 inches as found in the owner's manual on-line. The washers being utilized were not as strong or as thick as the ones articulated in the on-line owner manual. No comparison or mention was made of the physical paper manual provided by Caterpillar that accompanied the machinery when purchased.

(63) Lack of Testing

There was no testing done on the strength of the washers and bolts nor any analysis of their composition. Mr. Khan did not do an in-depth analysis of said washers or bolts. The bolts and washers that were recovered from the accident site were intact, no evident fractures were noted though some bowing of the washers were noted.

(64) Caterpillar's Specification Changes

For some unknown reason, Caterpillar had changed the specifications of these bolts and washers at some point between the issuance of the paper manual and the on-line manual that was consulted. The bolts were apparently longer and the washers were deemed to have been made thicker, presumably to account for the stress and strain of this equipment that was prone to stress and vibration whilst in use. However, this is conjecture and is not found in evidence.

(65) No Manufacturer Recalls or Bulletins

Importantly, Caterpillar always issued a recall or technical and/or safety bulletin to all purchasers or users of their equipment, irrespective of whether they had signed up to the on-line manual service or not. No bulletins, recalls or safety notices regarding this equipment was ever sent out by the manufacturers of this equipment (Caterpillar).

(66) Court's Finding on Specifications

Weighing all of the evidence, this court finds that the bolts and washers utilized were consistent with those that came with the excavator on purchase and were within manufacturer's specifications at the time. The subsequent change in the specifications appeared in the on-line manual with no safety issues noted, no recommendations made to upgrade to the longer bolts, and no explanation given to the dealers or purchasers of such equipment why those changes were adopted.

(67) Court's Finding on Count #3

As such, the court is left with some reasonable doubt regarding the actus reus on count #3 and in accordance with the law, that count shall be dismissed by this court.

The Remaining Count – Count #2

(68) Count #2 Charge

"Thomson at 961 Zelco Drive, Burlington, Ontario L7L 4Y3, on or about the 4th day of June, 2014, at the City of Burlington, in the Central West Region, in the Province of Ontario, did commit the offence of failing as an employer to ensure that the equipment, materials and protective devices provided by the employer were maintained in good condition at a workplace located at 961 Zelco Drive, Burlington, Ontario, contrary to s. 25(1)(b) of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1, as amended.

Particulars: The defendant failed to ensure that the operator cabin of a Caterpillar 325B excavator was securely fastened to the chassis."

(69) Interdependence of Counts #2 and #3

It is difficult to separate Counts #2 & 3 due to the fact that MOL inspectors have provided viva voce evidence that both counts result from the same set of facts – that the Prosecution believed after consulting the on-line owner's manual for the excavator – that the Defendant had utilized the wrong washers and bolts.

(70) Kienapple Principle and Particulars

This causes the court to consider two factors in consideration of these particular counts. Firstly does the principle against duplication, known as the Kienapple principle apply? And, secondly, if the court believes that counts 2 & 3 are substantially the same, though one is more generalized and the other more particular, must the Crown/Prosecutor rely only on the particularized offence and not the more general clause or offence (Count #2)?

(71) Potential Absurdity

This court has asked itself, that if it finds the Defendant guilty of both charges would it be open to the court to stay one of the charges since the penalty might result in duplication that the common law instructs us to avoid. In the corollary, if the defendant is found not guilty of one of those two counts, given their interdependence and genesis, would a type of absurdity result from finding the defendant guilty of one offence and not the other?

(72) Balancing Legislative Intent and Technicality

On the other hand, and from the prosecutor's perspective the court is sensitive to the fact that it must never lose sight of the intent of the legislation and that technicality and language should not be utilized or interpreted to frustrate that intention, all things considered.

(73) Evidence of Stress on Components

The MOL inspector and Mr. Khan did state that the bolts appeared to have lost some of their threads and the washers appeared 'bowed' which would circumstantially mean that the stress on those parts was more than they were designed to handle after years of operation. Khan speculated that it was hard to believe that such bolts would have been capable of holding the operator cab in place without the assistance and dependence on gravity which was a strong and applicable force when the equipment was operated in an upright position as it was designed to do. One might be tempted to wonder whether or not the defendant should be found guilty of not ensuring that the bolts and washers were kept in good repair over time.

(74) Two Approaches to Count #2

The court could approach this particular count on one of two ways:

(a) Dismissal Based on Kienapple and Particulars:

That since the bolts and washers were in the court's opinion, within manufacturers specifications and since the Prosecutor's witnesses/inspectors admitted that both counts (2) & (3) were laid after comparing the bolts and washers to the ones found in the on-line manual, the court should employ the same reasoning in dealing with this count as it did in dispensing with count #3 above. It would be somewhat absurd to find the defendant not guilty of one and guilty of the other offence which shares the substantial elements and facts. The MOL inspector admitted that both counts had to do with the specifications of the bolts and washers. Additionally, the argument presented above in the latter half of paragraph (70) above might also apply where the prosecution is not entitled to rely on the general clause when there are specifics or particulars included upon which they have relied. Even though the charges are separated that does not mean they are not intertwined and dependent on each other's facts. This court also believes both the Kienapple principle and the principle in (70) above do apply to regulatory offences and in particular, to this case.

Or

(b) Actus Reus Proven, Due Diligence Defence Available:

If the court accepts the prosecution's position and finds that the simple fact that the operator cab overturned and the defendant as the owner bears the responsibility for the accident, then the actus reus has been proven beyond a reasonable doubt. It is then open to the defendant to mount a due diligence defence to the charge to avoid culpability. Additionally, how is this defence of due diligence affected if the Defendant formally announces that they are not mounting or presenting a due diligence defence?

(75) Court's Adoption of Option (a)

For the reasons articulate above, the court has chosen to adopt option (a) above in paragraph (74) above having considered all of the evidence, the schedules and the intent of laying both counts (2) and (3) provided to the court in viva voce evidence by the MOL inspector. As such, count #3 before this court is also endorsed as dismissed.

(76) Alternative Finding: Due Diligence Defence

In the event that the court has erred in its decision, it will assume that the decision in (74)(b) above applies and that the actus reus has been proven. In that alternate universe, the transcript of the final day of submissions will show that defendant's counsel announced that they are not mounting or calling a due diligence defence. Is it open to the court to impute or infer a due diligence defence in spite of the defendant not formally calling a defence? It is this court's belief that if based on the evidence it has accepted, that a due diligence defence has been established to the court's satisfaction, the court may apply that evidence in the interests of justice (see R. v. Ashton).

(77) Regular Inspections of Excavator Arm

The Defendant appeared to have had regular inspections performed on the excavator arm assembly even though the operator cab itself was not inspected. The last inspection appeared to have been completed on or by March 31, 2014 on the arm assembly.

(78) No Recommended Maintenance Procedures

There appears to have been no recommended procedures or maintenance schedules recommended by Caterpillar with respect to the operator cab or upon the bolts and washers in question.

(79) Absence of Maintenance Guidelines

In fact, the defendant's position appears to be that there was no maintenance or service manual in existence or procedures recommended by Caterpillar, upon which an owner/operator could rely upon.

(80) Ongoing WSIB Investigation

There was some evidence that there might have been an open investigation that may be ongoing with respect to a WSIB claim of a third party regarding the cab riser design (see Defendant's submissions).

(81) Possible Design Fault

The failure or the cab separation may have not had to do with the condition or specifications of the bolts and the washers but might have had its basis in the softness/hardness of the two metal threaded plates in the chassis, to which the bolts were to fasten themselves to. There is no evidence to suggest that had the inspections on the operator cab been completed whether or not that would have addressed the problem, which is still unknown and subject to some debate.

(82) Lack of Foreseeability

It appears from the above that the accident might not have had reasonable foreseeability by Thomson, the defendant, and inspections and/or replacement of the bolts and/or washers may not have mitigated or prevented the cab from overturning if there is a design fault which has yet to be determined.

(83) Due Diligence Defence Considerations

Though this is not the strongest due diligence defence that is presented to or inferred by this court, the absence of maintenance guidelines from Caterpillar leads this court to believe that it would be difficult to establish that the defendant was not following recommended procedures and guidelines which for the cab portion of this excavator since they were largely absent.

Conclusion

These written reasons are respectfully submitted to the Prosecution, the Defendant and filed with the Court on November 14, 2017.

Gerry Manno Justice of the Peace