Court Information

Information No.: 19100943

Date: December 19, 2019

Ontario Court of Justice (Toronto Region)

The Queen in Right of Ontario, (Ministry of Labour)

-AND-

VIXMAN CONSTRUCTION LTD.

Before: Justice of the Peace G. J. Fantino

Trial: October 28 & 29, 2019

Reasons for Judgement released on: December 19, 2019

Counsel

For the Ministry of Labour: W. Wilson and E. Schiller

For Vixman Construction Ltd.: M. Cohen

Heard: In Writing

Reasons for Judgement

Introduction

[1] William Dean Maguire was tragically killed in a workplace accident at the Billy Bishop Toronto Island Airport on March 27, 2018. The parties filed an Agreed Statement of Facts at trial which sets out the following particulars (Exhibit No.1):

1. Vixman Construction Ltd. ("Vixman") is a valid Ontario corporation. At all material times it was an "employer" as defined in the Occupational Health and Safety Act ("OHSA").

2. In March of 2018, Vixman was contracted to install steel roofing over new walkways from the terminal at Billy Bishop Toronto city Airport, 2 Eireann Quay, in the City of Toronto. The work being performed was part of a "project" as defined in the OHSA, and so the provisions of the Regulation for Construction Projects (O.Reg. 213/91) were applicable.

3. PCL was the general contractor of the project and was an "employer" within the meaning of the OHSA.

4. Chris Bramer was the superintendent for PCL and was a "supervisor" within the meaning of the OHSA.

5. Vixman employed Dean Maguire and Brad Chapin. Both were "workers" as defined in the OHSA. Mr. Chapin was also a "supervisor" as defined in the OHSA. Brad Chapin was the Vixman supervisor for this job and was paid for that role.

6. Mr. Maguire and Mr. Chapin began work at the site on March 26, 2018.

7. Both workers continued their work on March 27, 2018. At approximately 10:00 am, Mr. Maguire fell from the work surface which was approximately 3.6 metres above the ground. He died from blunt impact trauma to his head.

[2] At trial, the Crown conceded that the self-retracting lifeline (hereinafter referred to as SRL) manufactured by Norguard Fall Protection Equipment and personally issued by Vixman to Mr. Maguire was found to be in proper functioning working order as intended for use and free from any technical malfunctions or maintenance flaws. While the Crown takes no issue with the deployment of SRL equipment for the scope of work being undertaken, the Crown alleges that the work process was badly flawed. Specifically, the configuration of SRL use in conjunction with irregularities associated with the SRL anchoring position itself form the basis of the charges before the Court.

The Charges

[3] The Corporate Defendant, Vixman Construction Ltd. is charged with two regulatory offences under section 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1 as amended and corresponding Ontario Regulation 213/91 for Construction Projects, Revised Statutes (hereinafter referred to the OHSA and/or Act) with:

failing as an employer to ensure that the measures and procedures prescribed are carried out in the workplace.

Count No.1: O. Reg. 213/91, s.26.6(2)

The fall arrest system shall be attached to a lifeline or by the lanyard to an independent fixed support that meets the requirements of section 26.7.

Count No. 2: O. Reg. 213/91, s.26.6(3)

The fall arrest system shall be arranged so that a worker cannot hit the ground or an object or below the work.

Findings of Fact

[4] A Notice of Project was duly filed with the Ministry of Labour which identifies PCL as the lead general contractor. Vixman was subcontracted by a structural steel company to install metal decking over new passenger walkways extending from the main terminal building. Vixman successfully completed a segment of this work referred to as phase one at Billy Bishop on the east side of the airport on earlier dates which involved a different work crew. It was determined that the prior work crew used a "trap door method" for anchoring at foot level when working on other passenger gates (Exhibit No. 3 / Tab C, Photograph Nos. 53-71).

[5] Brad Chapin and Dean Maguire arrived on the job site for the first time on March 26, 2018 accompanied by Vixman's Construction Manager, Mr. Wayne Roskam. Mr. Chapin was also the supervisor or foreman for the project and Mr. Maguire was a worker and health and safety representative for Vixman.

[6] Shop drawings for the project were provided to Mr. Chapin.

[7] It was established that Mr. Chapin and Mr. Maguire are the workers depicted in the video excerpts obtained directly from the airport security office with the assistance of the Toronto Police Service from March 26, 2018 and March 27, 2018 (Exhibit No. 4). Mr. Chapin is wearing green coloured clothing and Mr. Maguire is wearing orange coloured clothing.

[8] Mr. Roskam did not at any point in time observe Mr. Chapin and Mr. Maguire performing their assigned work duties.

[9] Mr. Maguire at the time of his death was properly wearing a safety helmet, a five-point harness around his legs, torso and shoulders which was attached by a carabiner clip to a D-Ring, fastened to a three-foot shock absorbing lanyard which was ultimately connected to a SRL block and wire rope sling.

[10] The SRL operates much like a seatbelt in a motor vehicle to allow unrestricted travel when pulled slowly and smoothly to a prescribed range but will lock when a sharp or abrupt motion is detected thereby preventing a further fall when an initial fall has been detected.

[11] Mr. Chapin and Mr. Maguire were working on gate three at the time of the incident and the structure was open and exposed with no guarding approximately 3.6 metres high and 8 feet wide. Mr. Chapin referred to this job as atypical to other projects because the structure was much lower and narrower. Mr. Roskam informed the court that Vixman's workers are usually exposed to heights from twenty five feet and even higher.

[12] The SRL device being used by Mr. Maguire was "leading edge approved" and bore the lettering "LE" confirming this application for use which for all intents and purposes is designed to arrest a fall in the event a worker goes past the edge. A leading edge is simply described as an exposed edge or opening on a roof, balcony or deck structure without any guardrail protection.

[13] The structure was essentially open to the ground below and the workers were installing the metal deck roof consisting of corrugated steel in segments. Leading edge gaps were present between various sections including to the sides, to the front and to the rear of the workers.

[14] To function properly and ensure worker safety, the SRL must be anchored to a fixed support. Multiple SRL blocks (as many as three units) were being used by the work crew and at least two of the SRL blocks including the SRL which was connected to Mr. Maguire were determined to be choked incorrectly around a steel vertical column. These deficiencies were observed in the airport security video played at trial with corroboration from three witnesses; Mathew Neundorf, Ministry of Labour Inspector, Mr. Chapin, Vixman's foreman and Mr. Brisco, Vixman's President and Owner at the time.

[15] Mr. Chapin and Mr. Maguire were not untied at any point and were working collaboratively to progress along the top of the structure. Mr. Chapin assisted Mr. Maguire to transfer from one SRL block to another. Mr. Maguire used the wire rope sling situated within the SRL casement to choke the device around a vertical column with Mr. Chapin standing immediately beside him. Both workers incorrectly fastened their SRL's around vertical columns.

[16] Similar irregularities with regard to SRL anchoring were evident on the day prior to the accident and also captured on airport security video.

[17] Norguard's Instruction Manual (Exhibit No. 2 / Tab 9) explicitly details several critical requirements for the safe use and operation of a SRL:

A. The analysis of the workplace must anticipate where workers will be performing their duties, the routes they will take to reach their work, and the potential and existing fall hazards they may be exposed to. (pg.3)

B. Fall Clearance Limitations: There must be sufficient clearance below the anchorage connector to arrest a fall before the user strikes the ground or obstruction. When calculating fall clearance, account for a MINIMUM 3' safety factor, deceleration distance, user height, length of lanyard/SRL, and all other applicable factors. (sample fall clearance calculation diagram pg.6)

C. Prior to use, a Competent Person MUST calculate adequate fall clearance (see pg.6) (pg.11)

Competent Person is defined as "A highly trained and experienced person who is ASSIGNED BY THE EMPLOYER to be responsible for all elements of a fall safety program, including, but not limited to, its regulation, management, and application." (pg.2)

D. NEVER work on the far side of an opening that is opposite the LE SRL anchorage point. (pg.11)

[18] The stated purpose of Vixman's Safe Work Practices - Working at Heights document (Exhibit #2, Crown Book of Documents at Tab #14, page not numbered) is to provide:

"… employees with Vixman's policy and set of guidelines or "Do's and Don'ts" that have been developed to mitigate hazards associated with working at heights."

[19] A standard operating procedure or protocol for "Calculating Fall Clearances" within the same text reads:

• Fall clearances must be calculated prior to job start up using shop drawings for the project.

• Calculated fall clearances shall be provided to the foreman and crew.

[20] All witnesses were consistent in their testimony which corroborates the finding that fall clearances were not calculated prior to job start despite the existence of shop drawings which were furnished to Mr. Chapin.

[21] The video evidence which captures the moments leading up to the accident supports the conclusion that Mr. Maguire was working at a significant distance away from the SRL block at the time of his fall (estimated by Mr. Neundorf to be approximately six metres) and that he was working on the far side of a fairly significant opening. Both of these deficiencies are in direct contravention of Norguard's operating instructions and Vixman's safety policies. There is uncontroverted evidence that Mr. Maguire, despite working on a roof structure only eleven feet, six inches (11.6) above the ground, extended his SRL well beyond twelve (12) feet which would have offered no fall protection whatsoever.

Legislative Provisions and Statutory Interpretation

[22] The OHSA is public welfare legislation which is subject to broad and liberal interpretation to best ensure the attainment of its stated purpose and objectives. The controlling case law concerning the issue of statutory interpretation can be found in Ontario (Ministry of Labour) v. Hamilton (City), 58 O.R. (3d) 37 (C.A.) ("Hamilton (City)"). At para. 16, Sharpe J.A. considered this statute specifically:

The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. 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. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided. [Emphasis added.]

[23] Bellamy J. in Enbridge Gas Distribution Inc. v. Ontario (Ministry of Labour), 2010 ONSC 2013 (Ont. S.C.J.); leave to appeal to C.A. dismissed (Watt J.A., in Chambers), 2011 ONCA 13 (Ont. C.A. [In Chambers]) at para. 24 stated:

The OHSA strives to make every party, every employer and every individual in the workplace responsible in some measure for health and safety. Accidents can and do happen. However, they do not always happen simply because of one incident. They can happen because of several incidents or omissions, as the appellants contend was the case here. The responsibilities under the Act overlap, creating a redundancy which operates to the advantage of workers. The parties in this appeal described this as the "belt and braces" approach to occupational health and safety, which means the Act and Regulations use more than one method to ensure workers are protected, So, if the "belt" does not work to safeguard a worker, the backup system of the "braces" might, or vice versa. If all workplace parties are required to exercise due diligence, the failure of one party to exercise the requisite due diligence might be compensated for by the diligence of one of the other workplace parties. The purpose is to leave little to chance and to make protection of workers an overlapping responsibility.

[24] The parties agree that the charges before the court are strict liability offences as set out in the seminal decision of R. v. Sault Ste. Marie (City), 40 C.C.C. (2d) 353 (S.C.C.). The Crown bears the burden of proving the actus reus or prohibited act on the criminal standard beyond a reasonable doubt. If the Crown overcomes this evidentiary threshold, the burden then shifts to the defence to demonstrate on a balance of probabilities that it was duly diligent. The codification of the Sault Ste Marie decision can be found in the OHSA itself under s.66 (3):

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

[25] In R. v. Timminco Ltd., 153 C.C.C. (3d) 521 (Ont. C.A.) at p. 530, after stating that the Crown need not prove a mental element to make out a strict liability offence, such as actual knowledge of a particular hazard, Osborne A.C.J.O. stated:

Section 25(1)(c) simply requires that an employer "shall ensure that... the measures and procedures prescribed are carried out in the workplace." In fact, use of the word "ensure" suggests that the Legislature intended to impose a strict duty on the employer to make certain that the prescribed safety standards were complied with at all material times.

[26] It is with these guiding principles in mind that I will commence my analysis of the specific charges instituted by the Crown against Vixman.

Actus Reus

[27] Proof of the failures specified in the charging document is proof of the actus reus and the prosecution need not prove any mental element on the part of the defendant corporation. Evidence of the actus reus has been established beyond a reasonable doubt and is borne out from witness testimony and the video evidence before the court.

[28] The defence concedes the actus reus in Count 2 of the information and mounted an unsuccessful challenge to the actus reus element applicable to Count 1 suggesting that the vertical column from which Mr. Maguire was tied off technically constitutes a fixed support. I disagree with that interpretation. The charge as laid under s.26.6(2) of O. Reg. 213/91 states that the independent fixed support must meet the "requirements of section 26.7."

[29] s.26.7 (1) 1. categorically specifies as a condition of a fall arrest, fall restricting or travel restraint system that it is "safe and practical to use the anchor system as the fixed support." I find that the vertical column from which Mr. Maguire was tied off was both unsafe and impractical for use as a fixed support thereby defeating the requirement prescribed by the Regulation.

[30] Furthermore, the decision of R. v. Seeley & Arnill Aggregates Ltd., 1993 O.J. No. 443, O.C.J. (General Division) para. 15 stands for the proposition that:

If the Crown proves a fall by a worker of more than three metres took place while doing work required by the employer, it prima facie imports the offence. It does not matter if it was caused by accident, negligence, recklessness or wilful neglect. If it occurred in a place where one might reasonably expect it not to take place, such a fact would be considered in a defence of due diligence or even mistake.

Due Diligence Concepts and Key Principles

[31] To avoid punishing regulatory offenders who are not deserving of sanction, the Supreme Court of Canada created the concept of strict liability offences in the regulatory context. These charges fall under this category.

[32] The defence of due diligence consists of two branches which is referred to as an alternative analytical test. Vixman may avoid liability if it can persuade the Court on a balance of probabilities that:

1. it mistakenly believed in a set of facts which if true would render the act or omission innocent;

OR

2. it took all reasonable steps to avoid the particular event.

[33] With regard to both branches of the defence, Vixman must establish that it subjectively believed in a state of affairs that renders its act innocent and that this belief is objectively reasonable. The onus is on the defendant to establish that it exercised due diligence on a balance of probabilities and a sound discharge of that burden is required.

[34] The use of case law and reliance upon various Crown and defence authorities has some inherent limitations when comparing the circumstances of each case which are unique but I accept that they are an important consideration with regard to the assessment and application of due diligence concepts and principles; particularly when the case originates from an appellate court and is precedent setting.

[35] The case of R. v. MacMillan Bloedel Ltd., 2002 from the British Columbia Court of Appeal provides key insights concerning how the two alternative branches of the due diligence defence operate independently. At para. 47, Justice Smith states:

The first applies when the accused can establish that he did not know and could not have reasonably known of the existence of the hazard. The second applies when the accused knew or ought to have known of the hazard. In that case, the accused may escape liability by establishing that he took reasonable care to avoid the "particular event".

Doctrine of Foreseeability:

[36] A central issue when analyzing whether the due diligence defence has been established is reasonable foreseeability. Most commonly applied to the law of negligence, this legal principle must be considered in OHSA prosecutions to determine whether the specific factual circumstances of the case make it reasonably foreseeable that the employer knew or ought to have known that a clear and imminent danger or risk of injury was present.

[37] R. v. Timminco Ltd., 153 C.C.C. (3d) 521 (Ont. C.A.), A.C.J.O. Osborne, reminds the parties that foreseeability is not an element required to be proved by the prosecution, but (at para. 28), "the foreseeability of a hazard is properly to be considered as part of a due diligence defence."

[38] The real question here is what might be anticipated by a reasonable person, did a danger exist and could it be prevented by taking reasonable steps, not whether an employee might take a foolish or thoughtless course of action, it being accepted that people will do foolish or thoughtless acts on the spur of the moment of the ongoing job at hand or for whatever reason.

Evidence of Due Diligence

[39] The defence filed a book of documents with the Court, endorsed as Exhibit No.5 which in addition to other documentary evidence and oral testimony received serves to substantiate Vixman's claim that it was duly diligent. I have summarized this information in the following categories for ease of reference and further analysis:

[40] Third Party Accreditation: Mr. Brisco described in great length that at the time of the accident, Vixman was in the process of obtaining a provincial certification for excellence in occupational health and safety. The COR (Certificate of Recognition) Program consists of a third party audit of a company's health and safety programs to verify that suitable training is being provided to the workforce with the appropriate level of communication and follow up. According to Mr. Brisco, an independent field audit had been completed prior to the incident at Billy Bishop airport but the death of Mr. Maguire prompted a re-examination of all policies and programs with a heightened level of scrutiny. Vixman ultimately received a full COR accreditation in early 2019.

[41] Safety Days and Tool Box Talks: The court received documentary evidence which was also supported by the testimony of Mr. Chapin, Mr. Roskam and Mr. Brisco that Vixman held regular tool box talks supplemented by annual training days earmarked for occupational health and safety purposes. The Court learned that tool box talks are an informal type of meeting with a work crew at a job site prior to the commencement of work which focuses on specific hazards with a view to reinforcing guidelines to mitigate risks. Subjects for tool box talks are generated by Vixman's health and safety committee. The timing of the most recent corporate training day held by Vixman took place on May 25, 2017 and is up-to-date.

[42] Training Certificates: I am satisfied that both Mr. Maguire and Mr. Chapin received extensive training and attended many courses and training dates throughout their working tenure at Vixman which included WHMIS (Workplace Hazardous Materials Information System), hoisting and rigging safety, first aid, working at heights, lift truck operations, portable fire extinguishers, etc.

[43] Brad Chapin (Supervisor): Mr. Chapin was the Vixman supervisor at Billy Bishop airport on March 26 and 27, 2018. He received training as a supervisor and was paid a higher hourly wage to reflect this level of responsibility within the company. Mr. Chapin testified that during his career at Vixman, he received training, education and guidance on numerous occasions specifically with regard to fall arrest protection.

[44] Dean Maguire (Health and Safety Representative): The Court learned that Mr. Maguire was also recognized as a health and safety representative at Vixman. This role would have afforded him the opportunity to resolve health and safety issues in the workplace and maintain safe working conditions.

[45] Unionized Workers: The Court received as part of the defence materials a copy of the Provincial Collective Agreement for sheet metal workers which sets out at Appendix "N" - minimum standards for accident prevention. The OHSA gives a worker the right to refuse work that is considered unsafe.

[46] Safety Equipment: SRL's, harnesses, lanyards and integrated component are personally issued by Vixman to its workforce. The workers are required to clean and care for the equipment. Daily pre-use inspections are completed and any equipment that is found to be deficient is immediately removed from operations.

[47] PCL Safety Briefing: Mr. Chapin and Mr. Maguire attended a safety orientation sponsored by PCL, the lead general contractor when they first reported to the job site on March 26, 2018.

[48] Norguard Instruction Manual and Vixman Safe Work Practices: a substantive component of the training and education of employees included the review of these materials which was circulated to all workers. In particular, an in-house document developed by Vixman, dated April 21, 2017 (approximately 1 year prior to the accident) outlines the safe job procedures for working at heights and SRL set up for laying deck. Some of the content contained in this document has been directly extracted from the Norguard operating manual.

[49] Pre-Safety Inspection Worksheets (Exhibit Nos. 6 and 7): Mr. Chapin as foreman filled out a Pre-Safety Inspection (PSI) prior to the commencement of work on March 26 and 27, 2018 which was specific to the job being completed by Vixman at Billy Bishop. Mr. Brisco explained that the PSI is designed to engage a workers' attention to give thought to the risks that will be encountered and the control method to safeguard the hazard. These documents were signed by both Mr. Chapin and Mr. Maguire to certify their acknowledgement and understanding of the presence of a fall hazard relating to deck installation which would be controlled by tying-off.

[50] Employee Acknowledgements: various employee declarations were included as part of the defence materials signed by both Mr. Chapin and Mr. Maguire on specified dates attesting to the fact that they received, read and understand the health and safety policies and workplace procedures of Vixman and that strict adherence to these guidelines is a condition of continued employment.

[51] Senior Leadership: Daryl Brisco as President and Owner of Vixman personally attended and endorsed the company's occupational health and safety programs. He was present and spoke at all corporate safety training days which were held annually at various off-site venues and intended to draw a high level of attention to workplace safety.

[52] Enforcement Letter (Exhibit No. 10): following the completion of Crown submissions, the Court was informed by Mr. Cohen that an important piece of evidence was inadvertently omitted by him during his examination in chief of Mr. Brisco. Despite some procedural irregularities and moderate objection from Mr. Wilson, I ruled that the witness would be recalled for the sole purpose of providing the evidentiary foundation of a letter dated July 11, 2016 addressed to all Vixman employees authored by Mr. Brisco himself. This letter was previously disclosed by Vixman to the Ministry of Labour and was in the possession of the Crown. The letter speaks to the termination of a long term employee for a significant violation of Vixman's safety policy and provincial legislation. The letter also reinforces Vixman's commitment to occupational health and safety with a stern warning that the company will not tolerate workers' actions which constitute a flagrant or deliberate breach of its safety polices and the OHSA.

Mistake of Fact

[53] The first branch or mistake of fact defence fails because the defendant is required to take reasonable steps to inform itself of the exposures to potential harm. There was no evidence proffered by the defence that a mistaken belief of fact existed on any material basis. The facts pertaining to the project specifications, the hazards involved, the ways and means by which such hazards could be duly safeguarded and the measures and procedures prescribed to be carried out in the workplace were known to Vixman. Further, there is no claim of any officially induced error which is a more common thread in a defence of mistake of fact.

All Reasonable Precautions

[54] The second branch of due diligence was particularized by Justice Dickson in R. v. Sault Ste. Marie (City):

... whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking all reasonable steps to ensure the effective operation of the system.

[55] This element of the due diligence defence is therefore about the offence at issue and not the employer's general safety policy. A safe company with thorough safety procedures can err in one regard, and the issue will be whether its system was directed to avoiding that mistake.

[56] The test in relation to due diligence is specific and objective. As the Crown properly set out, the defendant must establish that they took all reasonable steps to avoid the event in question, and what is considered reasonable is what a reasonable person would have done in the circumstances.

[57] In R. v. Barre, 2005 B.C.J. No. 2423 (B.C. Prov. Ct.), para. 19, Justice Sundhu set out a helpful summary of the older case law on due diligence:

A useful summary of the law is contained in the case of R. v. Placer Developments 13 CELR, 12 December 1983, Territorial Court of Yukon, Stuart T.C.J.:

No one can hide behind commonly accepted standards of care if, in the circumstances, due diligence warrants a higher level of care. Reasonable care implies a scale of caring. A variable standard of care ensures the requisite flexibility to raise or lower the requirements of care in accord with the special circumstances of each case. The care warranted in each case is principally governed by the gravity of potential harm, the available alternatives, the likelihood of harm, the skill required and the extent the accused could control the causal elements of the offence. (R. v. Gonder, 62 C.C.C. (2d) 326 at 332.)

Gravity of potential harm – The greater the potential for substantial injury, the greater the degree of care required. (R. v. Panarctic Oils, 12 C.E.L.R. 29 at 37; Canada Tungsten Mining Corporation Limited v. R. (1976), 1 Fisheries Pollution Report 75 at 79.)

Alternatives – Reasonableness of care is often best measured by comparing what was done against what could have been done. The reasonable alternatives the accused knew or ought to have known were available, provide a primary measure of due diligence. To successfully plead the defence of reasonable care, the accused must establish on a balance of probabilities that no feasible alternatives could be employed to avoid or minimize harm. (R. v Gonder, supra at 333.)

Likelihood of Harm – The greater the likelihood of harm, the higher duty of care. What particular facts heighten or diminish the likelihood of an accident will vary in each case. Assessment of the likelihood of harm is based on what an appropriately qualified expert might reasonably predict.

Degree of Skill Expected – Anyone choosing to become involved in activities posing a danger to the public, or to the environment, assumes an obligation to take whatever measures may be necessary to prevent harm. The costs of preventive measures are significantly less important in assessing the duty of care imposed upon persons who choose to undertake dangerous activities. (Sweet v. Parsley, [1970] AC 132 at 163.)

Matters beyond control of accused – No accused can be held accountable for unforeseeable accidents and for activities beyond the reach of what they might reasonably be expected to influence or control. (Reynolds v. G.H. Austin & Sons Ltd., 1951 2 K.B. 135 at 149.)

[58] Due diligence depends on the facts of each case, the particular industry or activity involved including the operation, its size, location, inherent risks, likelihood of harm, how much control the defendant had over the events, degree of knowledge expected of the defendant, and the damage and degree of harm involved.

[59] Due diligence considers whether the defendant acted according to industry standards, relevant legislation, licenses, training programs, internal and external audits, risk assessments, the availability of alternative solutions to prevent the occurrence, the defendant's promptness in responding to the problem, and efforts to mitigate and responsiveness to suggestions by regulatory officials.

[60] Due diligence requires a person or corporation to exercise reasonable care. Reasonable care does not mean superhuman effort nor is a standard of perfection required. A defendant must take all reasonable steps to avoid harm, but this is not the same as all conceivable steps. Rather, the defendant is only required to take those steps that could be reasonably expected in the circumstances. Reasonable care requires staying abreast of current technological and industry standards and hiring consultants when necessary. Reasonable care requires maintaining awareness of changing conditions and responding in a timely and appropriate manner so as to mitigate the foreseeable harm.

[61] Recent cases on the issue of due diligence and reasonable care appear to reflect a more practical and evidence based analysis, rather than an unrealistic and speculative approach. While more judicial insight has been gained over the years regarding what is required to establish a defence of due diligence, what is clear is that each decision will depend on the unique features and specific facts of the case involved.

Culture of Discretion Alleged

[62] The Crown suggests that Vixman maintains a culture of discretion which in whole or in part is a factor that contributed to Mr. Maguire's death on the job site. R. v. Moran Mining & Tunnelling Ltd., 2006 O.S.C.J. No. 19042, Justice Hennessy states at para. 28, 29, and 43:

The trial judge correctly noted that the real issues were the quality and effectiveness of the system of supervision and its enforcement of the rule that workers must be tied-off at all times when there was a hazard of falling. He assessed whether Moran's efforts were sufficient to ensure the use of the fall-arrest system or whether they amounted to "all reasonable steps."

The trial judge in rejecting the due diligence defence, accepted, correctly in my view, the abundant evidence of a workplace culture which condoned the practice of individuals making their own assessments of the hazard of falling and therefore making their own decisions about whether to use the fall arrest system.

The fact that the company provided a fall-arrest system, instructed workers in its use, and regularly reminded workers to use it, is laudable but does not fully satisfy the statutory requirements. The section uses the word "ensure" which has been strictly interpreted. The Regulation is worded in such a way that the employer is virtually:

"… an insurer who must make certain that the prescribed regulations for safety in the workplace have been complied with before work is undertaken by employees." (R. v. Wyssen, 10 OR (3d) 193 at 199 (OCA))

[63] In fairness to Vixman, I do not believe it is appropriate to suggest that an unmitigated or blanket culture of discretion exists within the company per se however, in so far as the accident on March 27, 2018 at Billy Bishop Airport is concerned, Mr. Roskam, Vixman's Manager of Construction confirmed that Mr. Chapin and Mr. Maguire did have the independence, autonomy and ultimate discretion to make certain decisions including whether to employ the trap door anchoring method. In addition, despite Vixman's own documented policy to provide fall clearance calculations to the foreman and crew prior to the start of work, Mr. Roskam contradicted this directive by suggesting that it is the workers' role to calculate fall clearances for any specific project.

[64] Mr. Roskam further advised the Court that given the uniqueness of every project, the workers are responsible for assessing the fall hazards associated with each job. Mr. Roskam suggested that the trap door method is typically used on larger scale projects but as previously ascertained, another Vixman crew used the recommended trap door technique for the completion of identical scope of work on other passenger walkways without incident.

[65] There is a causal link which flows from the lack of enforcement of the requirement to calculate fall heights in conjunction with the discretion permitted to be exercised by both Mr. Chapin and Mr. Maguire to forego the trap door method which would have provided a secure anchoring at foot level in conformity with established corporate best practices and the accident.

Analysis of Due Diligence

[66] The Ontario Court of Appeal considered the nature of the due diligence defence in R. v. Rio Algom Limited, 1988 and found that the respondent, in operating a mine, where a fatal accident took place, kept safety foremost in its corporate mind at all times. It had a good inspection and reporting system in effect to accomplish that purpose. These facts did not assist in avoiding responsibility for the lack of care on the part of the Defendant, which resulted in an unfortunate fatal accident. The Respondent did not prove that it was not negligent, with respect to the particular circumstances, which caused the fatal accident. The question of acting with all reasonable care is only in relation to the specific incident that is the subject matter of the proceedings.

[67] Justice Goodman in R. v. Rio Algom Ltd. commented on the restriction of the defence of due diligence to circumstances which caused the incidents which are the subject of the charges:

... 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. (emphasis added)

[68] A corporation's safety policies and standard operating procedures must be assessed in light of how they are carried out and enforced in the specific circumstances of each case. A comprehensive programme on paper is only as effective as its ultimate implementation and the failures identified in this case represent a marked departure from Norguard's operating instructions and Vixman's safe job procedures in several crucial areas.

[69] The suggestion that Mr. Chapin could have calculated the fall heights from the shop drawings because the elevation in question was not particularly challenging or the inference that Vixman believed it was his responsibility to do so because the shop drawings were already provided to him does not resonate with the Court. In fact, this failure or breakdown between what was expected by Vixman and what actually occurred demonstrates that the defendant corporation did not exercise due diligence in this regard. There was no evidence tendered that Vixman delegated or assigned the responsibility of calculating fall clearances to Mr. Chapin or any other employee.

[70] The defence failed to explain with any degree of clarity why the trap door technique which was used without incident by another crew on an earlier date for identical purposes was not employed by Mr. Chapin and Mr. Maguire. I find that the absence of a clear, compelling and logical explanation concerning this discretionary element to substitute or ignore a standard operating procedure prescribed by Vixman for anchoring at foot level is very damaging to Vixman's due diligence defence.

[71] Evidence of Vixman's fall arrest procedures, safety policies and methods do not in and of themselves establish that specific due diligence in relation to Mr. Maguire's fatal accident was exercised. The defendant corporation did not lead any evidence to support a claim that it was vigilant in the strict application, monitoring, compliance and enforcement of its fall arrest guidelines at Billy Bishop airport. For instance, Mr. Roskam, the most senior member of Vixman's leadership group on site did not at any point in time observe Mr. Chapin and Mr. Maguire working.

[72] The enforcement letter penned by Mr. Brisco on July 11, 2016 addressed to all employees although mitigating pre-dates the accident by nearly 2-years and originates from a worker transgression that was observed in the first instance and subsequently reported to Vixman by the Constructor's site safety superintendent.

[73] While I accept that the use of Pre-Safety Inspection worksheets may satisfy a process of hazard identification and risk control in keeping with construction industry standards and best practices, I find that the completion of project specific PSI cards by Mr. Chapin and Mr. Maguire on March 26 and 27, 2018 represent nothing more than a perfunctory box checking exercise with only a casual reference made to tying off as the prescribed control method; a mere formality really. They do not for instance contemplate the verification of any fall height calculations nor is any mention made of the option to anchor the SRL overhead or anchor at foot level by using the trap door method. I have serious reservations concerning the degree to which these PSI worksheets can be said to represent a reasonably diligent approach to advancing safety when working at heights.

[74] Mr. Brisco informed the court that tool box talks are a form of actual on the job training which is spearheaded by the foreman at a specific construction site. The sole evidence of a tool box talk occurring at Billy Bishop Airport is located in Exhibit No. 5 / Tab 8 which confirms that on March 26, 2018 the issue of "Pinch Points" was addressed. This subject matter has no bearing whatsoever to the fall hazard which claimed Mr. Maguire's life.

[75] Reasonable precautions must be specific to the hazard in play and in my view, Vixman relied detrimentally on the belief that its workers would make the appropriate decisions in keeping with their training and in conformity with safety policies. This circumstance is also relevant to the misapprehension on the part of Vixman that Mr. Chapin was a competent supervisor. Mr. Brisco at the conclusion of his testimony stated the following:

"We try and train everybody to the best of our abilities. I think that we have. And you have to put the faith that the people that you've trained are going to do it right."

[76] Mr. Brisco's testimony reflects that he is a caring, committed and conscientious executive, preoccupied with ensuring the safety and well-being of his employees but it is a flawed premise to suggest that when a worker departs from established procedures through either deliberate recklessness or inadvertent neglect that a company cannot be held liable for any ensuing injury or death.

Failure of Worker / Employee Recklessness and Neglect:

[77] Mr. Maguire made critical errors on the fateful day of March 27, 2018 which were entirely preventable and sadly, he paid for these mistakes with his life. It is settled case law however that employee failures, misconduct or recklessness and in particular when such carelessness is deemed to be inadvertent does not constitute a valid defence.

[78] R. v. Dofasco Inc., 2007 OCA, Justice Winkler speaking for the Court, stated the following at para. 22 and 23:

On a plain reading of the Regulation, employee misconduct does not go the actus reus of the offence. Rather, at least in relation to employees carrying out their work, an employer is strictly liable if it fails to comply with its obligations and there is no suggestion that employee misconduct constitutes any form of defence.

[79] Further, Collins J. had this to say about the purpose of the OHSA in R. v. Spanway Buildings Limited, April 3, 1986, unreported, at p.4 (Ont. Prov. Ct. (Crim. Div.)):

… one of the purposes of the act is to protect workers in this very hazardous industry from their own negligence. No one in any occupation can work 100 percent of the time without occasional carelessness. However, the potential for serious consequences of momentary negligence is much greater in the construction industry than in almost any other.

Failure of Supervisor:

[80] I will tread with a degree of sensitivity to the extent possible in my analysis pertaining to the failures of Mr. Chapin who by his own acknowledgement was Mr. Maguire's supervisor on March 17, 2018 and the designated foreman at the job site. Mr. Chapin and Mr. Maguire were not only co-workers but also friends for nearly thirty years. Mr. Chapin was at Mr. Maguire's side almost immediately after he fell and rendered first aid to Mr. Maguire and made a valiant effort to save his friend's life while awaiting the arrival of emergency medical services. I have no doubt that Mr. Chapin has been deeply affected by the tragic loss of his friend.

[81] Nevertheless, Mr. Chapin's shortcomings as a supervisor at the Billy Bishop Airport is disturbing in the extreme and I am shocked that a supposed well trained and experienced foreman entrusted with supervisory duties at the project site would make such critical errors that contributed to Mr. Maguire's fatal fall. It is not the function of this Court however, to assign or apportion blame thereby endorsing the defence's claim that it is Mr. Chapin who bears the ultimate responsibility for the accident. It is also not the Court's purview to question or speculate why the Ministry of Labour elected not to prosecute Mr. Chapin for contravening the OHSA given his duties as a supervisor which the is the subject of s.27 of the Act were clearly breached.

[82] I am troubled by Mr. Chapin's response to several crucial questions and find that as a minimum, he is either incredibly inept as a supervisor and naïve or in the alternate and more concerning, the lack of sophistication and naivety which emerged from his testimony may represent a deliberate attempt to feign ignorance and mislead the Court by engaging in an exercise of wilful blindness.

[83] For instance, when asked about the construction features of the structure being worked on and with the video of the structure itself in plain view on display in the courtroom, Mr. Chapin was still initially unsure about the existence of cross members or horizontal steel beams from which the lifeline could have been anchored; "I guess I didn't recall that they were there."

[84] On the subject of the shop drawings which Mr. Chapin confirms were in his possession, he failed to provide any explanation why he would direct work to begin in the absence of the fall height calculations being ascertained although he is quick to point out that the calculations were not provided to him by anyone at Vixman.

[85] Lastly, with regard to the presence of a gas powered quick saw which Mr. Chapin was observed on video relocating, no explanation was provided why the saw was not used to perfect the trap door method for anchoring at foot level. Despite confirming his awareness of this anchoring technique and acknowledging its use by another work crew weeks prior to the accident, the only point of clarification provided by Mr. Chapin concerning the saw was that it was being operated to cut down the corrugated steel material.

[86] Regardless, the legislation is clear and the Regulation prescribes that the accused is liable for acts or neglect of managers, agents, etc. s.66 (4) reads as follows:

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. R.S.O. 1990, c. O.1, s. 66 (4).

[87] R. v. Campbell, 2004 O.J. No. 129 (C.J.); aff'd (unreported, February 24, 2006. S.C.J.) at para. 71, the Court found that:

The "finger pointing" defence does not provide a valid defence (unless it fits a successful due diligence defence). Liability in the workplace is joint and several. The misconduct of one participant in the workplace does not exonerate the misconduct of another participant. Each participant must be considered separately to determine the participant's compliance with duties.

[88] R. v. Seeley & Arnill Aggregates Ltd., 1993 O.J. No. 443, O.C.J. (General Division), Justice Logan at para. 17 stated that: "The responsibility for the failure of a supervisor or someone in charge to do this ("to ensure that the measures and procedures prescribed in the Act were carried out on the workplace") rests with the company."

[89] R. v. Stelco, 1989 O.J. No. 3122 at para. 37 and 40:

A bad judgement call by a supervisor (someone fully cognizant of the responsibilities set out in the safety procedures) must unfortunately rest on the back of his employer, who is directly responsible for compliance.

Due diligence must in addition to a good system, establish that a person in charge is doing what he is supposed to do.

Summary

[90] The core objective of public welfare legislation is to make certain that the individual or corporate entity that is in the best position to care will act accordingly to ensure a public standard of safety and security is upheld. There is an inherent friction however that exists within the realm of public welfare prosecutions which requires the jurist to undertake a thorough analysis of the evidence, balanced against the backdrop of key legal principles and the controlling case law which bears upon the unique circumstances of each case to arrive at the appropriate disposition. The risk or danger from my perspective is most suitably explained in the decision of Reynolds v. G.H. Austin & Sons Ltd., 1951 from the United Kingdom which was cited in Sault Ste. Marie wherein Justice Devlin states:

…if a man is punished because of an act done by another, whom he cannot reasonably be expected to influence or control, the law is engaged, not in punishing thoughtlessness or inefficiency, and thereby promoting the welfare of the community, but in pouncing on the most convenient victim. (p.371)

[91] There can be no mistake that the ultimate responsibility of the worker within the workplace cannot be divorced from the responsibilities of the employer and the supervisor as prescribed in the Act. The responsibility flows from the top down and not from the bottom up.

[92] I am persuaded that Vixman did maintain a comprehensive and robust workplace safety program which consisted of several integrated components utilizing both in-house resources and external expertise with both general and specific content pertaining to workplace safety. These safety elements were elucidated in my review of the evidence presented by the defence.

[93] Vixman disseminated documentation to its workers pertaining to a myriad of risks specific to the sheet metal industry in which it operates as well as the prescribed control measures to ensure safety. Further, committee structures and employee positions with corresponding training and education programs were created for the protection of workers. But as Justice Hill in R. v. Canadian Tire Corp, 2004 (Ont. S.C.J.) succinctly describes at para. 88:

Broadly-worded policy, proclamation of general philosophical objectives and reliance on an overall good prior record does not directly speak to adherence to the necessary standard of care … The employer must show "it acted reasonably with regard to the prohibited act alleged 'not some broader notion of acting reasonably…'" Ontario v. Brampton Brick Ltd., 2004 O.J. No. 325 (Ont. C.A.) at para. 28, R. v. Kurtzman at 429; see also R. v. Rio Algom Ltd., supra at 251. Similar observations have emerged from other appellate courts. In R. v. Imperial Oil Ltd., 2000 B.C.J. No. 2031 (B.C. C.A.) at para. 23, 28 the court stated:

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

It is not an answer … to say that it had in general a good safety system …

[94] In R. v. Inco., 2001 O.J. No. 4938 (Ont. S.C.J.) Justice Serre at para. 47 quotes the decision of Justice Hurley in R. v. St. Lawrence Cement Inc., 1993 O.J. No. 1442 (Ont. Ct. Gen. Div.) at pg. 8:

"It is not enough for the accused to orally order the worker to confirm to certain safety procedures and send them pamphlets that repeat and reinforce that order. If that were so, the accused could fulfill their obligation under the Act by holding meetings and distributing pamphlets."

[95] The defence filed a comprehensive book of authorities, the contents of which support a successful defence of due diligence and stand for the premise that:

(i) the workplace accidents which resulted in serious injury and even death were attributed to employee negligence which could not have been reasonably foreseen by the employer given the existence of thorough and extensive employee safety training and not a lack thereof;

(ii) workers have a duty to follow instructions and a company cannot be held liable if a worker departs from standard procedures.

[96] I am unable to assign any persuasive value to these materials because these decisions can be readily distinguished from the case at bar in view of the glaring corporate shortcomings which occurred at Billy Bishop Airport pertaining to substantive safety requirements. Fundamentally, Vixman's failure to adhere to its own guidelines and enforce its own procedures to provide fall height clearance calculations to the foreman and crew prior to the commencement of work and further ensure that a safe anchoring at foot level was achieved by using the trap door method when clearly, the anchored overhead option was not available at the subject job site are critical errors that cannot be rehabilitated through a defence of due diligence.

Conclusion

[97] It is my belief that Mr. Maguire and Mr. Chapin failed to appreciate the fall hazard associated with this particular project because the height exposure was only 3.6 metres above the ground. Both men were long standing Vixman employees who clearly would have faced more challenging jobs with a significantly higher degree of risk during their working tenure.

[98] Having had the opportunity to replay the video of Mr. Maguire's fatal fall in the calmness and still of my chambers subsequent to the trial, I was struck by the incredibly cruel and sad irony which occurred on that tragic day. Despite taking obvious fall arrest precautions by using a self retracting lifeline which undoubtedly provided Mr. Maguire with a false sense of safety and security, the SRL would betray that confidence in an unthinkable manner by pulling him off the structure upon which he was working when the incorrectly positioned choke hold slid down the vertical column.

[99] In view of the totality of the circumstances, I find that Vixman Construction Ltd. failed to discharge the burden of establishing on a balance of probabilities that every precaution reasonable in the circumstances was taken and thereby failed as an employer to ensure that the measures and procedures prescribed under the OHSA were carried out in the workplace. Accordingly, convictions are registered on both counts.

[100] If the parties prefer, they can confer as to the return date and time required to make submissions with respect to penalty. Alternatively, I'm prepared to move ahead with a sentencing hearing following the morning recess.

Released: December 19, 2019

Signed: Justice G.J. Fantino

Witness List

Crown Witness No.1 - Mr. Mathew Neundorf (Ministry of Labour Inspector and Provincial Offences Officer)

Crown Witness No.2 - Mr. Brad Chapin (Vixman foreman and supervisor)

Crown Witness No.3 - Mr. Wayne Roskam (Vixman Construction Manager)

Defence Witness No.1 - Mr. Daryl Brisco (Vixman President and Owner)

List of Exhibits Tendered During the Course of the Trial

Exhibit No.1 - Agreed Statement of Facts

Exhibit No.2 - Crown Book of Documents

Exhibit No.3 - Crown Book of Photographs

Exhibit No.4 - Job site videos from March 26 & 27, 2018 (2 USB Keys)

Exhibit No.5 - Vixman Construction Book of Documents

Exhibit No.6 - Pre Safety Inspection (PSI) from March 26, 2018

Exhibit No.7 - Pre Safety Inspection (PSI) from March 27, 2018

Exhibit No.8 - Crown Book of Authorities

Exhibit No.9 - Defence Book of Authorities

Exhibit No.10 - Vixman Construction letter dated July 11, 2016 from Daryl Brisco