ONTARIO COURT OF JUSTICE
CITATION: Hydro Ottawa Limited v. Ontario (Ministry of Labour), 2019 ONCJ 85
DATE: February 15, 2019
COURT FILE No.: Ottawa 0411-999-12-6056-01
BETWEEN:
HYDRO OTTAWA LIMITED
Appellant
— and —
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
(Ministry of Labour)
Respondent
Before Justice Robert Wadden
Appeal Heard November 9, 2018
Reasons Released February 15, 2019
David Law ...... ……………………………………….……...counsel for the Appellant
Line Forestier ..... ……..……………………………..…counsel for the Respondent
On appeal from the convictions entered by Justice of the Peace B. Mackey of the Ontario Court of Justice on July 13, 2015, reported at 2015 ONCJ 554.
WADDEN J.:
[1] On March 22, 2012 Barry Robertson was working as part of a crew of three men, subcontracted to Hydro Ottawa, excavating holes for the installation of replacement hydro poles. The nature of this work required that it be done underneath live power lines. The crew was working with a specialized truck that included an extension arm with a vacuum attached. The crew had dug its hole and its work was going well when they encountered a large rock that slowed their progress. The men worked to loosen the rock and remove it from the hole. The rock was too large to fit through the vacuum tube but the vacuum was able to hold it firmly enough to lift it out of the hole. As the boom arm rose to lift the rock, the crew watched the hole to make sure the rock did not fall back in or cause the sides to collapse. The rising boom arm struck the live wire overhead. A surge of electricity went through all three men. Two of the men survived but Mr. Robertson was fatally injured. He died at the hospital that afternoon.
[2] As a result of the incident Hydro Ottawa faced charges of breaching the Occupational Health and Safety Act R.S.O. 1990, Chapter O.1 (the “OHSA”) and the Construction Projects Regulations, Ontario Regulation 213/91 (the “Regulations”). At trial, Hydro Ottawa was convicted of three counts. It brings this Appeal requesting that the findings of guilt be set aside as unreasonable and acquittals be entered.
[3] For the reasons that follow, I find that the Justice of the Peace did not err in his trial decision. I find the verdicts to be reasonable and would not grant the appeal.
The Facts
[4] Hydro Ottawa Limited is the electric power utility for the City of Ottawa, and is a private company wholly owned by the City. The crew digging the holes worked for a subcontractor, Greely Construction and its subsidiary Dig Safe Inc.
[5] Beginning in 2011, Hydro Ottawa began upgrading a substation and replacing and augmenting existing overhead cables running through a semi-rural part of the city, including along Moodie Drive. The process for installing new overhead cables is to replace existing hydro poles with new ones. The new poles, which are often taller than the originals, are placed between existing poles, and power lines are later detached from the original poles, lifted up and attached to the new poles. In order to not disrupt the power to hydro customers, it is common to keep one of three lines energized during the preparatory work. Dig Safe was involved in the preparatory work of creating holes in the ground for the new poles. In doing so, its employees had to work under live wires.
[6] The newest and fastest method for creating holes for the new poles is by using a Hydrovac, a technique for which Greely and Dig Safe had the equipment and expertise. A Hydrovac unit consists of a truck carrying a water tank with a high-pressure hose and vacuum attached. The hose is used to dig or drill the hole, breaking up the soil which is then vacuumed up into another tank on the truck. This creates a circular hole suitable for inserting a hydro pole. The vacuum hose is attached to a telescopic arm, or boom, that extends outward from the truck to bring the vacuum to the hole. The high-pressure water hose, reinforced with braided steel wire, is also attached to the truck. The evidence at trial was that the deceased, Mr. Robertson, was operating the Hydrovac with an attached remote control and was holding or carrying the water hose when the boom rose up and struck the energized overhead line. The voltage travelled through the boom, truck and water hose and electrocuted Mr. Robertson.
[7] At trial, the information charging Hydro Ottawa included four counts under s. 23(1) of the OHSA, alleging that the company failed as a constructor to ensure that measures and procedures prescribed by regulation were followed. The particulars on each count were:
Count 1: The defendant failed to ensure an object was not brought closer than three metres to an energized overhead electrical conductor;
Count 2: The defendant failed to ensure a competent worker designated as a signaller was stationed so that he/she is in full view of the operator and had a clear view of the electrical conductor and of the vehicle, and would warn the operator every time any part of the vehicle or other equipment may approach the minimum distance;
Count 3: The defendant failed to establish and implement written measures and procedures adequate to ensure that no part of a vehicle or equipment encroaches on the minimum prescribed distance when a vehicle or other equipment is operated near an energized overhead conductor and it is possible for part of the vehicle or other equipment to encroach on the prescribed minimum distance and failed to make this written document available to an employer on the project; and
Count 4: The defendant failed to take every reasonable precaution to prevent hazards to workers from energized electrical equipment, installations and conductors. Such precautions include ensuring proper equipment was discussed, properly used and positioned in the circumstances and/or ensuring a worker was informed of the height of the energized overhead wires and/or ensuring a procedure was developed to provide a safe work area as defined in the Electrical Utility Safety Rules for a worker using a non-insulated boom near an exposed energized overhead conductor.
[8] Hydro Ottawa was convicted on Counts 1, 2 and 4 and acquitted on Count 3. A fifth count, contrary to s. 25(2)(h) of the OHSA was stayed pursuant to R. v. Kienapple.
[9] The position of the Appellant is that Hydro Ottawa was unjustly convicted on Counts 1, 2 and 4 because the trial court committed a palpable and overriding error of fact in concluding the Dig Safe crew was not familiar with the concept of a signaller or the obligation to use one in these circumstances. Additionally, this error permeated its assessment of the due diligence evidence, leading to errors as to what constituted due diligence and whether the defendant proved on a balance of probabilities that it was duly diligent. The Appellant also takes the position that the trial court misstated the test for proving the actus reus of the offence in Count 1, misstated the legal test for establishing that due diligence had been made out, focussed on a narrow definition of due diligence and ignored the evidence of due diligence. With respect to Count 4, the Appellant says that the trial court erred in finding that the Crown had proven that certain particulars were legitimately necessary measures required to meet the defendant’s legal duty, and ignored relevant due diligence evidence and evidence that would have raised a reasonable doubt.
[10] The position of the Respondent is that Hydro Ottawa is seeking to reargue factual matters that were properly determined by the trial court and that deference is owed to the findings made at trial. It takes the position that the trial court made no error of law and did not make palpable and overriding errors in any findings of fact or mixed fact and law. It says the legal test was correctly applied, the actus reus of each offence was established on the facts, and evidence with respect to due diligence was properly considered. The Respondent’s position is that there was no miscarriage of justice and Hydro Ottawa was properly convicted on the three counts.
Occupational Health and Safety Act Offences
[11] Offences under the OHSA are strict liability offences. The burden is on the Crown to establish the actus reus beyond a reasonable doubt, and if it does the burden shifts to the defence to establish a defence of due diligence on a balance of probabilities.
The Standard on Appeal
[12] The scope of appellate review for a conviction under the OHSA is set out in s. 120(1) of the Provincial Offences Act, which states that an appeal may be allowed if the finding is unreasonable or cannot be supported by the evidence, on a wrong decision on a question of law or on any ground where there was a miscarriage of justice. Questions of law are reviewed on a standard of correctness. Questions of fact are evaluated on the standard of palpable and overriding error. It is not the role of the appeal court to retry the case or to reweigh the evidence.
Count 1: An Object Within Three Metres of a Live Wire
[13] Section 188(2) of the Regulations states that no object shall be brought closer than three metres of an energized overhead electrical conductor. The first count upon which Hydro Ottawa was convicted deals with the boom of the Hydrovac having come within the three metre envelope below the live wire, and ultimately making contact with the wire.
[14] The trial court heard the testimony of Mr. Robertson’s two co-workers, Tommy Viveiros and Alan Dyson, who were working with him when the crew was electrocuted. Also in evidence were photographs showing the position of the Hydrovac boom after the incident, and the testimony of Ministry of Labour investigators who examined the scene. The finding of the Justice of the Peace at trial was: “The court is satisfied that the boom of the Hydrovac came in contact with a live electrical wire and therefore within the restricted area, within the envelope. The actus reas [sic] of the offence is established; the elements of the offence are in place. The Crown has proven this fact based on a preponderance of photographic and oral evidence.” (emphasis added)
[15] The Appellant argues that in using the phrase “preponderance [of] evidence” the trial court misstated the test for proving the actus reus of the offence in the above passage. The Appellant states this is a misapplication of the standard of proof for the actus reus, which is proof beyond a reasonable doubt.
[16] The Respondent takes the position that this statement in the Reasons has to be read in context. They note that in the same paragraph the Justice of the Peace clearly set out the factual basis for the finding, namely that the boom had come in contact with the live wire.
[17] I agree that the wording used by the Justice of the Peace appears on its face to confuse the balance of probabilities test with proof beyond a reasonable doubt. However, in the context of the evidence in this case this appears to be more of a slip of the tongue than a misstatement of the legal test. The one fact that was clearly established in this case, beyond any doubt, was that the boom came in contact with the live wire. That was the physical mechanism that led to the electrocution of the crew and the death of Mr. Robertson. Mr. Viveiros and Mr. Dyson testified that the boom was being lifted up to vacuum a rock out of the hole when the men were electrocuted. Rick Wallace, a supervisor with Hydro Ottawa, came upon the scene within minutes of the accident and saw that “the boom was in contact with” the live wire. Ministry of Labour inspector Jason Gordon inspected the area after the accident and at that time measured the boom to be within inches of the live wire, within the three-metre envelope. Photographic evidence shows the boom within the envelope. The fact that the boom came in contact with the live wire, within the envelope of three metres, appears to be beyond dispute, and is not seriously contested by the Appellant.
[18] The Justice of the Peace had stated the correct legal test earlier in his decision, at paragraph 5, where he said “The court is also aware that this is a strict liability offence where the onus is on the Crown to prove the actus reas beyond a reasonable doubt,” and, at paragraph 6, “The Supreme Court has consistently reminded lower courts that the standard of proof is beyond a reasonable doubt consistent with the presumption of innocence and that this burden never shifts to the accused.”
[19] Given that the Justice of the Peace was aware of the correct legal test and properly stated it, and that the fact that the boom came in contact with the live wire is indisputable on the evidence, I find that the use of the word “preponderance” was not a misstatement of the legal test, but was merely an unfortunate use of the word in that context. I find there can be no issue that the actus reas of Count 1, of failing to ensure an object was not brought within 3 metres of a live wire, was properly found to have been proven beyond a reasonable doubt.
[20] With respect to the issue of whether Hydro Ottawa established due diligence on Count 1, the finding of the trial court was that it had not. The court found that “There is an ongoing responsibility to supervise, monitor, audit and review very specifically and importantly when there is a high risk of injury due to working so close to energized lines.” The court found that Hydro Ottawa did not meet this standard and did not establish the defence of due diligence. It thus found Hydro Ottawa guilty on Count 1.
[21] The Appellant takes the position that this finding is inconsistent with the finding that led to the acquittal on Count 3, where the court found that there were abundant measures and procedures in place to ensure that no equipment is operated near a live line. I do not accept this argument. On my reading of the decision as a whole it is clear that the trial court was aware of the difference between the counts charged and the different elements of each. Count 3 specifically related to whether the procedures were in place, and the trial court found they were. The Justice of the Peace stated, at paragraph 109, that “the Court finds that there was an abundance of measures and procedures in place that should have been adequate to ensure compliance” and at paragraph 113, “there are well established macro level measures and procedures forbidding entry into the limits of encroachment including EUSR rules, the OHSA and Regulations plus Greely and Hydro Ottawa documents and regularized training.”
[22] The Appellant essentially equates the existence of such written procedures with sufficient proof of its due diligence in relation to Count 1. The trial court found this was not the case – that more was required.
[23] John Fetzer, who worked for Hydro Ottawa in field service safety, testified that Hydro Ottawa had never conducted a safety audit of this crew, or any Greely crew working on this pole replacement project. He testified that any project working near traffic and in an environment with energized lines would be characterized as high risk.
[24] The trial court found this was a high risk project. It found that due diligence was lacking in the failure of Hydro Ottawa to supervise the crew or monitor its work, or to conduct an audit of the crew’s work or participate in any tailgate or safety meetings with the crew. The Reasons make it clear that the court found there was a failure on the part of Hydro Ottawa to actively supervise this crew to prevent having its equipment come into contact with the live wires.
[25] The closest Hydro Ottawa came to supervision of the Dig Safe crew on the day of Mr. Robertson’s death was in the passing contact by Rick Wallace, a Hydro Ottawa project coordinator who was responsible for a different crew performing electrical work a short distance away. At the beginning of the day he visited the Dig Safe crew to direct them where to perform their work. Later in the day, one of Mr. Wallace’s crew raised concerns about the Dig Safe crew. Mr. Wallace drove by the Dig Safe site, stopped for ten seconds, and said “Tommy, ten fucking feet from that shit,” pointing upwards to the power lines. This was a reference to staying out of the three metre/10 feet envelope.
[26] Mr. Wallace had not been assigned responsibility for supervision of the Dig Safe crew. His two visits did not take the place of proper supervision of the crew. Neither visit involved a review of their work plan or the procedures at that site.
[27] The trial court cited the decision of R. v. Stelco, [1989] O.J. No. 3122, which held, at paragraph 40, that “the obligation of the constructor is much more than to simply create a system to inform employers concerning their responsibilities under the Act, it must take the next reasonable step and ensure the effective operation of the system through its supervisors.” This correctly states the high standard imposed on an employer. As stated by the Court of Appeal in R. v. Wyssen (1992), 10 O.R. (3) 193:
An "employer" is obliged by s. 14(1) 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.
[28] The statement of the Court of Appeal in Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769, at paragraph 24, notes that the employer’s obligation is to protect all workers, even those who might be careless or negligent. The Court stated "... 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.”
[29] Also of note is the statement of the Court of Appeal in R. v. Rio Algom Ltd. (1988), 1988 CanLII 4702 (ON CA), 66 O.R.(2d) 674, in which it held:
I note that the trial judge appears to have been satisfied that the respondent, in the operation of the mine where the accident took place, has kept safety foremost in its corporate mind at all times and has a good inspection and reporting system in effect to accomplish this purpose. Those are relevant facts to be kept in mind with respect to sentence. They do not, however, assist the respondent to avoid responsibility for the lack of care on its part which resulted in the unfortunate fatal accident. The respondent has failed to prove it was not negligent with respect to the circumstances which caused the fatal accident.
[30] Contrary to the assertion by the Appellant that the trial court’s finding on due diligence sets an unrealistic standard that would require constant supervision by Hydro Ottawa, it is my view that the finding is in keeping with the established law. The level of supervision required is that which a reasonable person would take in the circumstances. The finding of the trial court that this standard was not met in this case was reasonable based on the evidence tendered at trial.
[31] It was a reasonable finding for the trial court to hold that Hydro Ottawa had not proven on a balance of probabilities that it had exercised due diligence. The conviction on Court 1 will be upheld.
Count 2: A Designated Signaller
[32] The essence of Count 2 was that Hydro Ottawa failed to ensure a competent worker was designated as a signaller. The trial court entered a conviction on this count and the Appellant takes issue with the findings of the trial court on actus reus and due diligence. The Appellant takes the position that the trial court made an unreasonable finding of fact that the Dig Safe crew was not familiar with the concept of a signaller or the obligation to use one in these circumstances.
[33] The requirement for a signaller is set out in ss. 188(8) of the Regulations, which states that any crew working near live wires must have a worker designated as a signaller. Section 106 of the Regulations states that the signaller “shall not perform any other work while acting as a signaller.”
[34] The direct evidence from Tommy Viveiros and Alan Dyson was that neither of them was acting as signaller, nor was Mr. Robertson. In their descriptions of the work immediately preceding the accident they describe a busy scene where they were occupied with the rock in the hole, and looking down, while Mr. Robertson was operating the Hydrovac vacuum while he was holding the water wand. All of the men were busy with the task at hand and none was acting as a signaller to watch for encroachment into the three metre envelope. Mr. Viveiros and Mr. Dyson both testified that there was no discussion of appointing a signaller when they had their tailgate meeting, even though the use of a “spotter” was checked off on the meeting notes. Mr. Viveiros testified that of the 100 holes they had dug on this project there had never been a designated signaller.
[35] The trial court made a clear finding of fact with respect to the presence of a signaller, at paragraph 85: “There was no competent worker designated as a signaller stationed so that he is in full view of the operator and had a clear view of the electrical conductor and of the vehicle to warn the operator every time any part of the vehicle or other equipment may approach the minimum distance.” This finding is supported on the evidence heard at trial and was a reasonable finding for the trial court to make.
[36] The Appellant asserts that the finding is unreasonable because those witnesses were not credible. There is nothing on the record that would lead me to find that the trial court’s determinations of credibility were unreasonable or clearly contrary to the evidence. To reweigh the evidence to make my own finding of credibility is not the role of the appeal court. As stated by Hoffman, J. in R. v. Prince Metal Products Ltd., [2011] O.J. No. 6450, at paragraph 81, “With respect to the credibility assessment an appellate court is required to " ... show great deference to findings of credibility made at trial" and not engage in a de novo assessment of credibility by substituting its own review of the evidence.”
[37] The Appellant also takes issue with the trial court’s finding that the defence of due diligence had not been established by Hydro Ottawa. The Appellant points to the evidence of Hydro Ottawa’s training of Dig Safe employees, its requirement that they have independent training, the opinion of Mr. Wallace that the Dig Safe crew was reliable in observing the rules, Hydro Ottawa’s field audit program, the documented evidence in the crew’s tailgate work plan referring to a signaller and the warning delivered by Mr. Wallace at the side of the road, which the Appellant says implicitly required the use of a signaller.
[38] The trial court considered these points and found they did not amount to due diligence. The court found that more specific monitoring would have been required. As stated at paragraphs 90 and 91 of the reasons,
90 Due diligence is more than saying they were trained or that they had material. Due diligence is more than the well-meaning caution of a Hydro Ottawa supervisor at the last minute advising someone who just looks up to watch the wires. This crew dug several holes successfully for Hydro Ottawa. There is no evidence that anyone beyond the crew was paying any attention to the danger. Where is the specific due diligence required by law?
91 Due diligence would have included specific onsite monitoring and review of this crew directly dealing with the requirements for working near an energized line starting with a designated worker doing nothing else but acting as a signaller particularly when the Hydrovac was operating. This review function would be seen as critical in the early days and would continue with spot checks. Failure for this crew, or others, to meet that standard should result in aggressive action by the contractor. Indeed, Hydro Ottawa had previous taken action against them (Greely) for matters far, far less serious than this incomprehensible breach.
[39] The Court found that a signaller had not been used, that this crew had not been audited and that Mr. Wallace, the only Hydro Ottawa person who directly dealt with this crew on the day in question, did not ensure compliance with the signaller requirement during his brief visit with the crew. Both Mr. Viveiros and Mr. Dyson testified they had not received any training on the role of a signaller. When one takes into account Mr. Viveiros’ evidence that his crew had never used a signaller in the digging of 100 holes, it seems that the lapse in safety was endemic on this project, yet Hydro Ottawa never noticed it or took any steps to correct it. The conclusion of the trial court, at paragraph 96, was that “The Crown has proven its case beyond a reasonable doubt and the Court does not accept that a reasonable person would accept a brief encounter at the end of a shift, a missed audit or non-participation in a Tailgate as adequate due diligence.”
[40] Considering all the evidence that was before him, the trial court’s finding that Hydro Ottawa had not proven due diligence on this count was reasonable. The conviction on Count 2 will be upheld.
Count 4: Reasonable Precautions, Including Height of the Wire
[41] Count 4 was a charge contrary to ss. 183 of the Regulations, namely that “every reasonable precaution shall be taken to prevent hazards to workers from energized electrical equipment, installations and conductors.” The particulars of the charge stated that “such precautions include ensuring proper equipment was discussed, properly used and positioned in the circumstances and/or ensuring a worker was informed of the height of the energized overhead wires and/or ensuring that a procedure was developed to provide a safe work area as defined in the Electrical Utility Safety Rules for a worker using a non-insulated boom near an exposed energized overhead conductor.”
[42] The evidence established that the live overhead wire was “really low to the ground”, measured by Mr. Gordon after the incident to be 20 feet, two inches above the ground. With a 10-foot prohibited envelope that left the crew a working space of only 10 feet. Mr. Wallace, for Hydro Ottawa, testified that the lower the wire the easier it is to encroach. Mr. Fetzer testified that the height of the wires would be an important piece of information for the crew to know. Mr. Gordon testified that it would be reasonable for workers to know the height of the wires to evaluate the limit of approach. Mr. Viveiros testified that he understood wires to always be the same height of 30 feet off the ground. Both he and Mr. Dyson testified that Hydro Ottawa never told them the height of the wires at this location, although Mr. Dyson testified that the low wire position was discussed at the tailgate planning.
[43] The trial court found that the actus reus of this Count had been proven beyond a reasonable doubt. His Worship found, at paragraphs 119 and 121 of the Reasons:
There was no mention of the height of the wires to the crew and no evidence of watching the crew just as there was never any serious enquiry about a signaller or spotter, and certainly no review of the Tailgate process. …
There is no way to rationalize not making sure that the crew was aware of a 20 foot electrical separation. It was not reasonable to assume any particular competence in electrical matters from a non-electrical crew.
[44] In my view, there was sufficient evidence for the trial court to make the finding that the crew was not informed of the height of this low wire, and that the actus reus of the offence had been proven.
[45] The Appellant takes issue with whether informing the crew of the height of the wire, as particularized in the count, is an appropriate particular, as it is not a “reasonable precaution” as required by the Regulations. Secondly, the Appellant takes the position that the Respondent must have proven each particularized element of the charge. Both arguments fail on this appeal. If the Appellant had taken issue with the particulars of the information the proper forum for challenging that would have been the trial court. It is not for the Appellant to raise this for the first time on appeal. The particulars of the count clearly indicate that one element of the impugned conduct was failing to ensure “a worker was informed of the height of the energized overhead wires”. The particulars were disjunctive, with “and/or” between each one. The count, as worded, is very broad. Had a challenge to the particulars been brought at trial, the Appellant may have persuaded the trial court that an amendment was in order. But no objection was made at trial that the particulars were overly broad, or that the Appellant was prejudiced as a result of the wording of the charge. There is no error in law in the trial court having focussed on one aspect of the particulars and finding the actus reus of that aspect had been proven beyond a reasonable doubt.
[46] The Appellant argues that the trial court failed to explain the necessity of a 20-foot warning, and how the failure to convey “irrelevant and unhelpful information” about the height of the wire constitutes a breach of the Regulations. It takes the position that “it is difficult to even speculate how such knowledge might have made a material difference in the protection of the workers.”
[47] I disagree. The particulars allege a breach because the workers were not informed about the height of the wire. The evidence in this case is that the wire was a low wire, fully one third closer to the ground than ordinarily so. The evidence, including from Hydro Ottawa’s own witnesses, was that it was important for the crew to know the height of the live wires in their vicinity. It was reasonable for the trial court to find that the failure of Hydro Ottawa to inform the crew of the exceptionally low height of the live wire was a breach of its requirement to take every reasonable precaution to ensure the crew’s safety.
[48] The Appellant argues that the trial court erred in its evaluation of the due diligence defence, in that it did not consider the evidence of proper procedures that were in place on the part of Hydro Ottawa as evidence of due diligence. The Appellant also takes issue with the trial court’s finding that “Hydro Ottawa rated this as a High Risk Project”, taking the position that that was not the evidence.
[49] It is true to say that there was no such formal rating of the project as high risk, but the testimony of Mr. Fetzer was that this project met the conditions for being “high risk,” as the work was being done in proximity to road traffic and energized lines. The trial court’s finding, at paragraph 120, that “Evidence was shown that Hydro Ottawa rated this as a High Risk Project both from the traffic control aspect and the live overhead wires” may not be a literal statement of the evidence is an accurate summary of that part of Mr. Fetzer’s testimony.
[50] From reading the entirety of the Reasons, it is apparent that the trial court took into account the documents, practices and procedures that Hydro Ottawa had in place. The acquittal on Count 3 makes this clear. The offence in Count 4 deals with whether the crew was specifically informed of the low wire hazard at this site. The court found that it was not. The Appellant relies, for the due diligence defence, on the evidence of good procedures. It was reasonable for the trial court to find this had limited weight when important information about the height of the wires at the particular work site was not conveyed to the crew. As His Worship noted elsewhere in the Reasons, at paragraph 37,
The fact that this crew appeared to be working under the sole dictum of "look up" in an each-man-for-himself environment is unacceptable and clearly not what Hydro Ottawa practises, teaches or condones or what the OHSA anticipates. Nevertheless, all of this is worthless in the field if workers are not monitored and controlled through appropriate supervision.
[51] It is reasonable for the trial court to have found that the workers at this job site were essentially left to themselves without any information about the specific hazards they faced at this site. The crew was told by Mr. Wallace, on behalf of Hydro Ottawa, to dig in this location. His cursory comment late in the day of “Tommy, ten fucking feet from that shit” does not constitute the due diligence required to ensure that reasonable steps for the crew’s safety had been taken at this site. The fact that Mr. Wallace’s comment was all that was said – seven words, very summarily spoken – highlights what was not said and done. There was no warning that the height of the live wire was lower by one third from what the crew was used to, effectively cutting their safe working space in half, from 20 feet to 10 feet. There was no observation of the crew as they worked to ensure a signaller was in place. There was no discussion with the crew as to what their plan was to work in the confined environment.
[52] The finding of the trial court, at paragraph 121 of the Reasons, was that “a non-electrical crew operating elevating equipment capable of penetrating the electrical envelope of energized wire in a high risk project required more reasonable attention than was shown.”
[53] In my view, this was a reasonable finding for the trial court to make on the evidence before it. I find no reason to interfere with the conviction on Count 4, and it will be upheld.
Conclusion
[54] For the reasons I have set out, I do not find there was any error that would warrant interference with the convictions entered by the trial court.
[55] The Appeal is dismissed.
Released: February 15, 2019
Justice Robert Wadden