Ontario Court of Justice

Date: February 22, 2021 Court File No.: 4811-99917-100479-02

Between:

Her Majesty The Queen in Right of Ontario, Respondent

— v. —

GMJ Electric Inc. and Gino Martignago, Appellants

Provincial Offences Appeal

Before: Justice Michael Block

Heard: November 17, 2020

Reasons for Judgment released: February 22, 2021

Counsel: I. Stewart, counsel for the Crown L. Honickman, counsel for the Appellants

Block J.

Introduction

[1] On August 23, 2018 GMJ Electric Inc. (GMJ) was convicted by Justice of the Peace M.H. Conacher of two counts on an information dated April 6, 2017 alleging contraventions of the Occupational Health and Safety Act (the Act). Count 2 alleged that GMJ had failed, as an employer, pursuant to s. 25(1)(c) of the Act to ensure that the measures prescribed by s. 125(1) of Ontario Reg 213/91 were carried out at a workplace on May 10th, 2016. Count 2 was particularized thus: The Defendant failed to ensure that a scaffold was provided for a worker, Julian Bailey.

[2] GMJ was also convicted of count 4 by failing, as an employer, to provide information, instruction and supervision to a worker to protect the health and safety of the worker contrary to OHSA, s. 25(2)(a). Count 4 was particularized thus: The Defendant failed to provide information, instruction and supervision to a worker, Julian Bailey, to protect the health or safety of the worker when working on or from a ladder.

[3] Mr Gino Martignago was convicted of count 3 on the same information alleging that he failed, as a supervisor, to ensure that a worker worked in the manner and with the protective devices, measures and procedures prescribed by s. 125 of the Regulation, contrary to s. 27 (1) (a) of the Act. Count 3 was particularized thus: The Defendant failed to ensure that a scaffold was provided for a worker, Julian Bailey.

[4] The defendants appeal their convictions.

Grounds of Appeal

[5] The appellants raised the following issues:

1. Did His Worship circumscribe the appellant’s right to a due diligence defence by adopting an approach of absolute liability in circumstances where the prosecution can prove a hazard existed, regardless of the cause of the accident?
2. Did His Worship craft an unworkable protocol that renders employers liable for any accident, regardless of the negligent conduct of the employee?
3. Did His Worship err in applying a narrow approach to the definition of supervisor under the OHSA, which resulted in a finding that Mr Martignago was the only supervisor of Mr Bailey?

Evidence of a Hazard

[6] On May 10, 2016, an addition and renovation to an existing commercial building was under construction at the Sunwing offices located at 37 Fasken Ave in Toronto. The general contractor was Santoro Construction. GMJ was subcontracted to install conduit pipe and run BX cable through the conduit to the junction boxes located in the plenum; the area between the roof and the dropped ceiling of the addition. This work also involved stripping the cable to prepare it for connection to the junction boxes.

[7] Gregory White and Julian Bailey were employed by GMJ on May 10, 2016 at the Sunwing site working at the tasks described above. On that day Mr Bailey fell from a ten-foot ladder to the floor of the site. He was seriously injured and lost the use of his legs as a result. He had little memory of the event. There was no evidence of Mr Bailey’s actions at the time of the accident. The presiding justice accepted the evidence of Mr White and Mr Bailey in respect of their tasks and the working environment.

[8] The evidence indicated that, in the area of the addition that is the focus of this case, the distance between the concrete floor and the roof was 15 feet, six inches. The distance between the floor and the dropped ceiling was 118 inches. The tasks facing Mr White and Mr Bailey had to be carried out in the 68 inches that constituted the plenum. The evidence made clear that some of the tasks, such as “snaking” cable over top of the beams supporting the roof to reach the junction boxes mounted on the underside of the roof, required the men to work at the top of the plenum. To work at that height of 15 feet, 6 inches, the men would have to stand on the top plate of the ladders.

[9] Normally, the installation of the conduit and BX cable would have taken place before the installation of the drop ceiling. For reasons immaterial to this case, scheduling difficulties precluded that order of installation. As a result, installation had to take place between the roof and the drop ceiling. This unfortunate circumstance created, not just inefficiency, delay and inconvenience, but a potential workplace hazard for the GMJ installers.

[10] In addition to the difficulties presented by the dropped ceiling itself, access to the plenum was also impeded by the “I” beams supporting the roof, by the HVAC conduits and the chains supporting the light fixtures.

[11] Mr White testified that they had been using powered platform lifts for the installation of the conduit and cable before they came to the area where the dropped ceiling was already installed. Mr White said that the side rails on the platform lifts, a necessary safety feature, precluded their use in the area where the dropped ceiling was in place. With the rails in place the platform lifts would not have been able to reach high enough to do the necessary work.

[12] Once they came to the area where the dropped ceiling was in place, Mr White and Mr Bailey accessed the plenum by first removing 2ft. by 4 ft. ceiling tiles and then using ten-foot stepladders to access the area above the dropped ceiling. The ladders reached approximately 2 inches beyond the ceiling tile.

[13] Evidence indicated that the height of the third rung below the top of the ladder was 7 feet. Work Safe guidelines indicate that the third rung from the top is the highest advisable height to step on while working.

[14] Mr White testified that on occasion he was compelled to stand on the top plate of the ladder while doing the cable pulling and connecting work. He was instructed not to do this by Mr Matt Moore, an electrician working for GMJ. There was evidence Mr Di Giovanni, the site supervisor for Santoro, was also aware that Mr Bailey and Mr White were, on occasion, working from the top plate of the ladder. Their testimony indicated that they cautioned Mr Bailey and Mr White against this practice. These actions indicated that Mr Moore and Mr Di Giovanni, at least, were aware that the use of the ladders in the existing situation constituted a fall hazard.

[15] Mr Bailey acknowledged working up to the second or first rung below the top in his testimony. He testified that he knew the ladder would be unstable if he went too high. Both men testified to using both arms extended while on the ladder. Mr Bailey acknowledged reaching out beyond the sides of the ladder to pull cable. He was unaware of the caution stickers on the side of the ladder advising against those practices.

[16] The testimony heard by the trial justice confirmed that Mr Martignago knew of the hazards of the work assignment in question, in particular that, given the height of the roof, Mr White and Mr Bailey could have secured cable to the underside of the roof and threaded it through the “I” beams only by standing on or near the top plate or on the topmost rungs of the ladders. The ten-foot ladders were the only equipment that was provided for the work Mr Bailey and Mr White were required to do in the plenum. The evidence also indicated that the two men had to manipulate tools and cable without maintaining three-point contact with the ladders being used.

[17] The trial justice rejected the defendants’ submission that the use of industrial strength ladders, in good condition and placed on solid footing, mitigated the hazards involved in the installations of conduit and cable between the drop ceiling and the roof. The trial justice found that while ladders are not inherently unsafe, their use in these conditions did not mitigate the fall hazard.

[18] The defendants also argued that the fact of the accident itself did not require the conclusion that a hazard existed, but that Mr Bailey may have been the author of his own misfortune. The trial justice found that the issue before the Court was not the immediate cause of Mr Bailey’s accident, but whether the appellants provided appropriate measures to deal with the fall hazard that obviously existed. He found that the use of the ladders required the workers to reach out to the side with their body mass well outside the centre of the ladders, that the ladders weren’t tall enough to provide upper body stability when the workers were working just underneath the roof and that the workers were unable to maintain three point contact with the ladders. These factual conclusions were well grounded in the evidence.

[19] The trial justice found that the prosecution “established beyond a reasonable doubt that the nature of the tasks required to be performed, in the conditions that existed, performed at the height that was necessitated, presented hazards, including specifically a fall hazard.” (Trial Judgment, paragraph 37)

[20] The trial justice’s conclusion that the use of the ladders presented a fall hazard to the workers and that the existing hazard required the use of scaffolding per the Regulation as referenced in the information was, in my view, unassailable. His assessment is the only reasonable conclusion available on the evidence.

Due Diligence and Scaffolding

[21] Based on the evidence, a number of practical alternatives to the use of the ladders were available and had been the subject of discussion between Mr Martignago and other persons including Mr Di Giovanni. Mr Martignago appeared to dismiss without explanation the option of erecting and moving scaffolds. He attempted to rent single occupant “genie” lifts, but they were not provided as they were apparently not immediately available. There was much evidence that Mr Martignago was preoccupied with the delay in completing the GMJ portion of the construction at the Sunwing site. Mr Di Giovanni suggested that the “T” supports for the dropped ceiling be broken or removed, which would have enabled the use of a platform lift. He offered to pick up the additional costs. There is evidence from both Mr Di Giovanni and Mr Martignago that the issue of breaking the “T” supports came up on at least one occasion in a January 2016 meeting. There was no evidence why this offer was not pursued by GMJ.

[22] The appellants argue that the due diligence defence may proceed by way of two branches. The first branch is that the defendant must establish that a reasonable, but mistaken, belief in a state of facts which would render the prohibited act or omission innocent. In the second branch, the defendant must prove that it took all reasonable steps to avoid the prohibited event.

[23] The appellants further advance the argument that the due diligence defence does not impose an obligation on the employer to anticipate every possible accident or failure. They also contend that worker misconduct or negligence or error may play a significant role in establishing a due diligence defence.

[24] The trial justice clearly found that a fall hazard existed. As I have indicated this was a reasonable finding supported by the evidence. In these specific circumstances, ten-foot ladders could not possibly be used safely for the work in the plenum.

[25] It is incontestable that Mr Martignago knew of the hazard inherent in performing the work in question and that no effort was made to provide an alternative means for Mr Bailey and Mr White to safely access the plenum.

[26] A worker’s potential role in the causation of an accident becomes relevant when the employer has taken all reasonable steps to address the hazard and there is evidence that worker misconduct or negligence has defeated the employer’s efforts. The trial justice was correct to address the gravamen of the offence: the failure to address the hazard in the workplace. It is clear from his judgment that he found that there was no evidence of misconduct or negligence by Mr Bailey. There is no air of reality to the contention that Mr Bailey may have been responsible for his own misfortune.

[27] I agree with the respondent’s position that the GMJ workers were placed in an impossible position, they were directed to perform hazardous tasks without the equipment to complete them safely.

[28] I find that the trial justice’s conclusion that due diligence was not made out the only reasonable conclusion available on the evidence.

Information, Instruction and Supervision

[29] Count 4 of the information references the employer’s duty to provide information, instruction and supervision to a worker to protect the health and safety of the worker.

[30] Extensive evidence in relation to this issue emerged at trial. Mr Martignago testified that he explored Mr Bailey’s training and his use of ladders with a contact at a previous employer. This person, who had no prior contact with Mr Bailey, described the type of training given to employees in the use of ladders. Mr Martignago and Mr Bailey met to discuss employment with GM the day before the latter started with the company. GMJ did not provide Mr Bailey with any training in the use of ladders, nor was his previous training reviewed with him. It was intended that Mr Bailey take workplace safety training with a private company, Technical Safety Solutions, later in May 2016.

[31] GMJ had a comprehensive workplace safety program. Mr Bailey was unaware of it. He had no copy of it. No copy was provided at the workplace. There was no indication that Mr Bailey was informed of his right to refuse unsafe work.

[32] The exploration of Mr Bailey’s understanding of safety information and his prior instruction in safe work practices by Mr Martignago was perfunctory and superficial. Mr Martignago, in effect, delegated his informational and instructional safety responsibilities to a previous employer without any significant inquiry into the nature and extent of that training. I agree with the conclusion by the trial justice that” the efforts made to inquire into Mr Bailey’s level of knowledge and experience in the area of workplace safety generally and ladder safety specifically, were minimal at best.” (Trial Judgment, Paragraph 53) His view is supported by the evidence.

Was Mr Martignago a supervisor?

[33] The trial justice noted the definition of supervisor in s.1 of the Act:

“supervisor” means a person who has charge of a workplace or authority over a worker.

[34] The evidence established that Mr Martignago was the owner of GMJ and its sole director. He was the individual with authority over GMJ’s work at the site. He hired Mr Bailey, set the salaries, arranged working schedules and resolved workplace issues. He attended meetings at the site. He was responsible for arranging workplace safety training for employees. He identified himself to Mr Bell, the Ministry inspector who investigated the accident, as “the supervisor of the project”.

[35] Mr Martignago relied on Mr Moore, the GMJ site electrician, to be “his eyes and ears”. At times Mr Martignago directed Mr Moore to have Mr White and Mr Bailey perform particular tasks. That said, Mr Martignago’s authority over Mr Moore at the site was unquestioned. Mr Martignago attended the Sunwing site in his capacity as employer and supervisor.

[36] The trial justice found that the exercise of site authority by Mr Di Giovanni and Mr Moore did not exclude Mr Martignago from supervisory obligations. He was correct. There is no statute or jurisprudence limiting the number of potential supervisors at a worksite. A supervisor’s liability cannot be deflected by evidence that other persons at the site may also have had a supervisory role.

[37] I find the trial justice’s conclusion that Mr Martignago was a supervisor within the meaning of the Act to be a reasonable conclusion, based on the evidence.

Conclusion

[38] I would answer the questions posed by the appellants as follows:

1. The learned trial justice correctly imposed a strict liability standard. In particular, he examined the evidence for facts that would suggest the appellants took measures to address the obvious workplace hazard. His finding that no measures were taken to address the hazard is the only reasonable finding available on the evidence.
2. The learned trial justice appropriately did not consider examining the injured worker’s role in this accident as no steps were taken to address the hazard by the employer.
3. The learned trial justice applied a broad standard in determining who met the definition of “supervisor”. He correctly reasoned that the definition could apply to several different individuals at the work site, but that observation did not excuse Mr Martignago from the supervisory obligations imposed by the Act.

[39] I have found no error in the trial justice’s recitation of the facts and no error in law to be found in his application of the law in respect the characterization of the due diligence defence, his application of the strict liability standard and in his application of the definition of “supervisor”.

[40] The appeals are dismissed.

Released: Monday, February 22, 2021 Judge: Michael Block, Ontario Court of Justice