Court File and Parties
ONTARIO COURT OF JUSTICE DATE: September 29, 2022 COURT FILE No.: Simcoe 21-111
BETWEEN:
HIS MAJESTY THE KING IN RIGHT OF ONTARIO (MINISTRY OF LABOUR, TRAINING AND SKILLS DEVELOPMENT)
— AND —
GREAT LAKES FOOD COMPANY LTD.
Before: Justice A.D. Hilliard
Heard on: July 12 and August 2, 2022 Reasons for Judgment released on: September 29, 2022
Counsel: David McCaskill, for the Crown Jeremy Warning, for the defendant
Hilliard J.:
Overview
[1] Great Lakes Food Company Ltd. was charged on a two-count information after an incident on March 23, 2022 involving a fishing boat owned by Great Lakes Food. On that date, the senior deckhand, Michael Smith, went overboard and was not recovered safely.
[2] At the end of the first day of trial, Crown counsel conceded that count 1 on the Information could not be proven and as such that count was marked withdrawn.
[3] The trial continued on the remaining count on the Information – count 2:
Great Lakes Food Company Ltd. did commit the offence of failing, as an employer, to ensure that every precaution reasonable in the circumstances was taken for the protection of a worker, contrary to s. 25(2)(h) of the Occupational Health and Safety Act.
Particulars: The employer failed to ensure that suitable cold water protective equipment was provided and used.
[4] For the following reasons, I find that the Crown has not proven count 2 beyond a reasonable doubt.
Undisputed Facts
[5] The Donna F is a fishing boat owned and operated by Great Lakes Food. On March 23, 2022, the Donna F set sail on Lake Erie from Port Dover, Ontario with a crew of three (3): Joseph Zimba (Captain), Michael Smith (lead deck hand), and Kenneth MacKay (junior deck hand). The Donna F was sailing to Long Point to fish for smelt.
[6] Great Lakes Food was the employer on the date of the incident. Mr. Smith was a worker. The Donna F was a workplace.
[7] The Donna F is a 68-foot trawler fishing boat. Captain Zimba has a fishing master 4 qualification and has been a ship’s captain for approximately forty (40) years. At the time of the incident, he had been employed by Great Lakes Food for approximately twelve (12) years. In all his years as a ship’s captain, Captain Zimba never had anyone go overboard on his watch until March 2020.
[8] Michael Smith was the lead deck hand on the Donna F. He had experience fishing on the Donna F for a number of years prior to March 23, 2020. Mr. Smith also had experience fishing on the Atlantic ocean.
[9] The air temperature on the day of incident was cold, but above freezing – approximately 5 – 6 degrees Celsius. Environmental conditions on March 23, 2020 were near perfect – light wind, calm to six (6) inch waves and clear visibility. As the Donna F reached its anticipated fishing destination, the water was calm and there was very little wind. The temperature of the water was cold – 34 degrees Fahrenheit (just above freezing).
[10] The crew was wearing winter clothes: pants, flannel shirts, jackets, hats and gloves. No one was wearing a life jacket or any other type of flotation device. Life jackets and immersion suits were located on the boat in the wheelhouse, easily accessible by any member of the crew.
[11] At the time Mr. Smith went overboard fishing had not yet begun. The deck of the ship was dry, and the boat was moving very slowly, changing directions to follow another fishing vessel owned and operated by Great Lakes Food.
[12] The last person to see Mr. Smith alive was Mr. MacKay. Mr. MacKay was tasked by Mr. Smith to move a buoy to the stern of the boat in preparation for deployment of the fishing nets. After Mr. MacKay moved the buoy to the stern of the boat, he went to the wheelhouse to talk with Captain Zimba.
[13] When the Donna F arrived at the fishing location, Captain Zimba told Mr. MacKay to let Mr. Smith know it was time to set the nets. Mr. MacKay and then Captain Zimba were unable to locate Mr. Smith anywhere on the ship and at that point realized that Mr. Smith had gone overboard.
[14] Mr. Smith’s body was recovered on March 27, 2020 from Lake Erie offshore of Long Point.
[15] The Ministry of Labour assigned an inspector to conduct an investigation into the events that led to Mr. Smith going overboard while working on the Donna F. Inspector Krantz was assigned to the investigation on April 2, 2020, after the initial inspector assigned to the case was promoted to Acting Manager. Prior to Inspector Krantz’s involvement, work orders were issued on behalf of the Ministry of Labour on March 31, 2020. The first of those orders directed Great Lakes Food to provide suitable protective equipment to the people working on the Donna F and require that equipment’s mandatory use when cold water conditions existed.
[16] After the work order was issued by the Ministry of Labour on March 31, 2020, Great Lakes Food purchased floater coats and now requires workers on board all their ships to wear the floater coats while working. The jackets purchased have material that is buoyant, with neoprene to help protect against cold water in case of immersion.
Analysis
[17] The remaining offence before the court is a strict liability offence. Therefore, if the Crown has proven the actus reus beyond a reasonable doubt then the onus shifts to the defence to demonstrate due diligence. To prove the actus reus of the offence, the Crown must prove the following beyond a reasonable doubt:
(1) Great Lakes Food was an employer (2) Michael Smith was a worker (3) The Donna F was a workplace (4) The offence occurred at the date and location alleged in the Information (5) Suitable cold water protective equipment was not provided and not used (6) The precautions particularized in the Information were reasonable in the circumstances
[18] The first four (4) elements of the offence are not disputed. The defence contends that the Crown has not demonstrated beyond a reasonable doubt that reasonable precautions were not provided by Great Lakes Food in the circumstances. The charge is particularized in this case to specify that the precautions are suitable cold water protective equipment provided to workers.
[19] As Justice Kastner notes in her decision in R. v. Petro-Canada, 2008 ONCJ 558: “[i]t is not enough for the Crown to prove that the precautions alleged in the particulars were reasonable in some abstract sense. The circumstances are an element of the offence, and the Crown must prove that the precautions alleged were reasonable in light of these circumstances.” [1] The Court of Appeal confirmed that the surrounding circumstances are part of the elements of the offence in the Brampton Brick appeal. [2] I must therefore consider the totality of the circumstances when determining whether the precautions alleged are reasonable in the circumstances.
[20] I accept that part of the circumstances is the near freezing cold water. However, in considering the totality of the circumstances, I must also consider that the boat of the deck was dry at the time Mr. Smith went overboard. The water conditions were near perfect for sailing – minimal chop, and there was little to no wind. The inherent risk of submersion in cold water cannot be considered in isolation from the other circumstances on the boat and on Lake Erie on that particular day at the time Mr. Smith went overboard.
[21] There was no evidence led by the Crown as to the industry standards regarding what constitutes suitable cold water protective equipment. The evidence of Captain Zimba was that generally workers on fishing vessels, even those fishing in cold water, do not even wear life jackets while working. There is no evidence that Great Lakes Food failed to comply with the provisions of any Act or Regulations regarding safety equipment or procedures for fishing vessels such as the Donna F. I accept that there are inherent risks associated with cold water immersion but there is no evidence before me as to what reasonable precautions should have been taken to mitigate that risk.
[22] The Crown concedes that there is no evidence as to what caused Mr. Smith to go overboard on March 23, 2020 because the other two men on board the Donna F that day have testified that they were not present when Mr. Smith went overboard. As a result, there is no explanation for how or why Mr. Smith ended up in the near freezing waters of Lake Erie that day. The lack of an explanation for the cause of Mr. Smith going overboard is a relevant consideration in determining the circumstances in which Great Lakes Food is alleged to have been required to take reasonable precautions.
[23] Great Lakes Food cannot be held liable for something that was unforeseeable. I agree that the risk of cold water immersion is part of the circumstances that I must consider, but I am of the view that I must also consider the lack of any reasonable explanation for Mr. Smith going overboard on the date in question. All the circumstances of that day set out in the evidence lead me to conclude that there was nothing on the ship, in the water, or in the weather conditions that day to explain why Mr. Smith might have accidentally gone overboard.
[24] The Court of Appeal noted in Ontario (Ministry of Labour) v. Sheehan’s Truck Centre Inc., 2011 ONCA 645 that the Occupational Health and Safety Act “seeks to achieve ‘a reasonable level of protection’ for workers in the workplace. For obvious reasons, neither the Act nor the Regulations mandate or seek to achieve the impossible – entirely risk-free work environments.” [3] Great Lakes Food has no obligation to provide the safest workplace imaginable and liability must not be determined on such an impossibly high standard.
[25] Even if I were to accept that it is reasonably foreseeable that a deckhand may go overboard accidentally in near perfect sailing conditions, I am not satisfied that the Crown has demonstrated beyond a reasonable doubt what precautions should have been taken by Great Lakes Food. There was no evidence that wearing any form of cold water protective equipment is standard in the fishing industry, nor is it required by legislation or regulation. The evidence of Captain Zimba was to the contrary – generally workers on fishing boats do not even wear life jackets while working. Captain Zimba also testified that to his knowledge only workers on fishing boats owned by Great Lakes Food wear the type of floater coat purchased by the company after the incident involving Mr. Smith going overboard. He also could not provide any evidence on whether the floater coats purchased by Great Lakes Food are sufficient to prevent someone from drowning after going overboard in near freezing water temperatures and the Crown did not call any other witness to give evidence about the floater coats.
[26] The Crown invites me to consider the post-incident conduct as proof of the actus reus of the offence, specifically the purchase of floater coats by Great Lakes Food after the accident. I am not of the view that post-incident conduct can be considered in determining the actus reus of the offence. In Dana Canada Corp., Justice Harris adopts the reasoning of Justice Lane in her unreported decision from 2008 of R. v. Warren Bartram, wherein Justice Lane states, “[p]ost accident changes or improvements, standing by themselves, cannot be taken as an admission of liability or a basis for a finding of liability.” [4] Justice Harris allows the admission of the evidence on his voir dire ruling subject to specific limitations: “All evidence of remedial action by the company may be used solely to refute any defence of due diligence should such a defence be raised.”(emphasis added) [5] In my view, Justice Harris’s decision can support the proposition that post-incident conduct can be considered when determining due diligence but not as evidence of the actus reus of the offence.
[27] Even if I am wrong about the use that can be made of post-incident conduct, there is no evidence that the floater coats purchased by Great Lakes Food are suitable cold water protective equipment to prevent drowning in the case of a person going overboard in nearing freezing water. There was no evidence presented as to the buoyancy of the floater coats or the extent to which the floater coats protect a person wearing one of them from the effects of cold water. I am not satisfied on the evidence before me that the floater coats purchased by Great Lakes Food are “suitable” cold water protective equipment.
[28] In determining that the post-incident conduct of Great Lakes Food cannot be used as proof of the actus reus in this case, I have also considered that the changes implemented were compelled by the work order issued by the Ministry of Labour. Section 66 of the Occupational Health and Safety Act makes it an offence to fail to comply with an order of an inspector. In this case, a number of work orders were issued by the Ministry to Great Lakes Food on March 31, 2020, one of which was that Great Lakes Food “shall protect workers from the hazard of cold water immersion […] by providing suitable protection equipment and requiring its mandatory use when cold water conditions exist.” The purchase of the floater coats was because of this work order and therefore action taken by Great Lakes Food that was compelled by the Ministry. In my view, such compelled action by Great Lakes Food cannot be evidence of the actus reus of the offence on a strict liability offence.
Conclusion
[29] The Crown has not proven beyond a reasonable doubt the actus reus of the offence.
[30] Count 2 on the Information is hereby dismissed.
Released: September 29, 2022 Signed: Justice A.D. Hilliard