ONTARIO COURT OF JUSTICE DATE: 2023 11 29 COURT FILE No.: Toronto 21100714

BETWEEN:

THE ONTARIO MINISTRY OF LABOUR, IMMIGRATION, TRAINING AND SKILLS DEVELOPMENT

— AND —

LIMEN GROUP CONST. (2019) LTD., OCTAVIO TOME, and EMANUEL TAVARES

Before: Justice Newton-Smith

Heard on: April 11-14, 24-27, May 8-10, June 9, 16, 26, 27, 29, July 25-26 and September 12 and 14, 2023

Reasons for Judgment released on: November 29, 2023

Counsel: W. Robinson, G. Adams......................................................... counsel for the prosecution N. Keith............................................................................................................................................ ...... counsel for the defendants Limen Group, Octavio Tome and Emanuel Tavares

REASONS FOR JUDGMENT

NEWTON-SMITH J.:

I. OVERVIEW

[1] On December 14, 2020 a concrete block being hoisted by crane over a construction site at 38 Widmer Street in Toronto fell and crushed Andrew Orfankanos, a worker on the site, to death.

[2] The corporate defendant Limen Group Const. (2019) Ltd. and two individuals, Mr. Tome and Mr. Tavares, all face charges in relation to this incident under the Occupational Health and Safety Act [OHSA].

[3] The charges against the corporate defendant Limen Group are particularized as follows:

1. failing to ensure that waste concrete blocks to be hoisted by crane utilized attachment points that were suitable for that use, contrary to section 25(1)(c) of the OHSA.

2. failing to take the reasonable precaution of ensuring that workers engaged in the movement of waste concrete blocks at a construction site were sufficiently trained and/or supervised regarding the hazard of using embedded rebar at hoisting points, contrary to section 25(2)(h) of the OHSA.

[4] Both Mr. Tome and Mr. Tavares are charged with one count of failing, as a supervisor, to take every precaution reasonable in the circumstances for the protection of a worker, contrary to section 27(2)(c) of the OHSA. The charge for both defendants is particularized as follows:

The defendant failed to take the reasonable precaution of ensuring that workers engaged in the movement of waste concrete blocks at a construction site were sufficiently trained and/or supervised regarding the hazard of using embedded rebar as the hoisting points.

II. THE EVIDENCE AT TRIAL

A. The Evidence of the Ministry

(i) The Construction Site

[5] The construction project at 38 Widmer was a multi-story condominium building. The developer/constructor was Concord Construction. Concord Construction owned the site. Limen Group was the subcontractor engaged by Concord to carry out the build of the condominium.

[6] In evidence was a contract between Concord Widmer Ltd., the “Owner”, as represented by Concord Adex Construction Limited, the “Construction Manager” and Limen Group Const. (2019) Ltd., the “Trade Contractor”. The contract was for the services of formwork, rebar and concrete placement being provided by Limen Group at the 38 Widmer construction site. Also in evidence was a Ministry of Labour form, “Registration of Constructors and Employers Engaged in Construction”, which listed Limen Group Const. (2019) Ltd. as the corporation registered as the constructor and employer engaged in construction for the project at 38&40 Widmer Street.

[7] Fadi Sidhom was the senior superintendent for construction at the 38 Widmer project. He was employed by Concord Construction and was responsible for overseeing the construction of the condominium. Tariq Bakir was the assistant supervisor.

[8] Octavio Tome was one of Limen Group’s supervisors on the project. He was described as being a “macro-level” manager. Emanuel Tavares, also employed by Limen Group, was Mr. Tomes’ lead hand and was responsible for overseeing the workers in Mr. Tomes’ absence. He was described as being the “micro-level” manager.

[9] On December 14, 2020, the day of the fatality, the crane was being operated by Cali-Don Rose. John Solc was the swamper responsible for rigging the load that fell. Mr. Rose and Mr. Solc worked for Limen Group. The deceased, Andrew Orfankanos, was a carpenter working on the site.

[10] Matthew Antongiovanni and Matthew Cook were the Ministry inspectors assigned to the investigation immediately after the fatality. Prior to the laying of charges in this case Mr. Antongiovanni was suspended by the Ministry and Mr. Cook became the lead investigator.

(ii) Shotcrete and the Removal of Waste Concrete from the 38 Widmer Construction Site

[11] Limen Group was contracted to carry out the formwork on the build. This included the placement of rebar, concrete and shotcrete used to build walls and reinforce the structure.

[12] At the time of the incident excavation of the project was complete and the formwork on the below ground parking levels was underway.

[13] Shotcrete, which is part of formwork, is a process where liquid concrete is sprayed to form walls. The process creates waste concrete.

[14] As a subcontractor Limen Group was responsible for taking care of any waste that they created. The developer, Concord Construction, supplied bins to be used for waste removal including concrete. These bins were placed on the ground level.

[15] Limen Group was responsible for removing the shotcrete waste from the lower levels and placing it in the ground level bins provided by the constructor.

[16] Wooden boxes, supplied by the shotcrete division of Limen Group, were used to gather the shotcrete waste in the excavation site. The excess shotcrete was shoveled into the wooden bins while still wet.

[17] Often rebar was placed in the wooden bins first so that when the concrete dried the rebar created hooks sticking out of the concrete. The embedded rebar could then be used as a hoisting point for short lifts of the concrete. For example, to get the concrete out of the wooden bin in order to place it directly on the ground, or on to 4x4s or into another larger bin. The embedded rebar was not designed to be used as a hoisting point for anything more than lifts like these of a few feet.

[18] In order to get the concrete waste out of the excavation site and up to ground level it had to be hoisted by crane. The crane was supplied by Limen Group and operated by a Limen Group employee.

[19] A swamper, also employed by Limen Group, was responsible for attaching the materials being hoisted to the crane. The materials were then lifted, or “flown”, by crane, out of the excavation site. Another swamper at ground level was responsible for detaching the material from the crane once it landed.

[20] The swamper who rigs the load is described as being “in the hole”. The swamper who detaches the load is described as being “up top”.

[21] On the day of the incident Mr. Solc was the swamper in the hole and a worker named Hilario was up top.

[22] All of the witnesses agreed that the following four methods were safe and approved methods for removing waste concrete from the site:

1. leaving the waste concrete in the wooden bin, wrapping the crane chains around the bin to choke it, and hoisting the whole bin up and out of the excavation site

2. removing the waste concrete from the wooden bin by attaching the crane chains to the embedded rebar, lifting it out and onto 4x4s where the crane chains could then be wrapped around the waste concrete itself to choke it, and then hoisting the waste concrete block up and out of the excavation site

3. lifting 2 or 3 waste concrete blocks into a large green wooden bin and hoisting the entire bin up and out of the excavation site using fixed anchor sites

4. lifting the waste concrete blocks and placing them in a 14-yarder blue steel bin and hoisting the entire bin up and out of the excavation site using fixed anchor sites

[23] None of the four safe and approved methods involved hooking the crane directly to the rebar embedded in the waste concrete and lifting the waste concrete block up and over the site without choking it.

[24] Inspector Cooke estimated that prior to the day of the fatality approximately 160 waste concrete blocks had been taken out of the excavation site. This estimate was based on a calculation of how much concrete had been used and roughly how much waste would have been produced.

(iii) The Video of the Incident

[25] There is video footage from the worksite that day which captures the fatal load.

[26] A total of three loads of waste concrete blocks can be seen being lifted and flown out of the site that day. The first load begins at 10:56 am and ascends at 10:57 am. The second load begins at 11:02 am and ascends at 11:04 am. The third load begins at 11:06 am. At 11:07 am, as it is being hoisted over the site, the block falls and can be seen crashing down into the excavation portion of the worksite.

[27] In all three lifts the waste concrete block was attached directly to the crane chains using the embedded rebar as a hoisting point. None of the blocks were in a bin and none of the loads were choked or strapped.

[28] While this is occurring workers can be seen going about their business on the construction site.

[29] At no point during any of these three lifts does anyone on the site appear to evidence any concern about the loads being hoisted over the site.

[30] The crane has a glass bottom that allows the operator to see the load being lifted. At no point during any of these three lifts does the crane operator stop the lift.

(iv) The Evidence of the Site Supervisors for the Constructor

Fadi Sidhom

[31] On the morning of December 14, 2020 Mr. Sidhom was on site at 38 Widmer. He began the morning as usual doing a walk-through of the site and spoke with the Limen supervisors on site Mr. Tavares, “Mani” and Mr. Tome, “Octavio”.

[32] At the time of the incident Mr. Sidhom was standing with Mr. Tavares in the south east corner of the site. They had been standing there together for a few minutes before they heard the crash and immediately rushed over. Mr. Sidhom did not see the block that fell being hoisted.

[33] Mr. Sidhom was shown the video of the incident. He testified that he had never seen waste concrete blocks being lifted out of the site that way before.

[34] Mr. Sidhom testified that prior to the incident he had seen waste concrete blocks being flown out by crane from the lower level of the project. Unlike the loads on the video they were always inside of a wooden bin. Mr. Sidhom testified that any loads that he saw being lifted were done in accordance with industry practice, which he described as being “basketed” with rigging underneath a wooden box and loops on straps hooked to the crane.

[35] Mr. Sidhom testified that if he had seen waste concrete being lifted out of the site in the manner of the lift that failed, he would have been extremely concerned and very vocal about it. He described the manner in which the fatal load was rigged as “completely unacceptable” and testified that the block should never have been lifted by the rebar.

[36] Prior to the incident Mr. Sidhom had not received any complaints about the manner in which the waste concrete was being removed from the site at 38 Widmer. Nor was he aware of any.

Tariq Bakir

[37] On the day of the incident Mr. Bakir was on the worksite. At the time that the load fell he was on same level as the worker who was killed and about 7 metres away.

[38] Mr. Bakir testified that prior to the incident many concrete waste blocks had been removed from the site. Each shot of shotcrete created on average 6 to 8 waste blocks. Mr. Bakir estimated that well over 30 waste blocks had been removed from the project and 90 wouldn’t be unreasonable.

[39] Mr. Bakir testified that when he had seen waste concrete blocks being removed from the site it was always in one of two manners: either lifted with straps around the entirety of the block, or in a wooden bin or sometimes both.

[40] Mr. Bakir was shown the video. He also testified that he had never seen waste concrete blocks being flown out of the site in this manner.

[41] The only time that Mr. Bakir had ever seen waste concrete blocks being lifted directly by rebar was when they were being lifted just a few feet, for example to lift them out of the wooden boxes. These lifts were never above standing height.

[42] Mr. Bakir had never received, nor was he aware of, any complaints about the manner in which concrete waste was being removed from the site at 38 Widmer.

(v) The Evidence of the Swamper – John Solc

[43] Mr. Solc, along with the crane operator Mr. Rose, was originally charged in relation to the incident. Shortly before the trial started his charge was withdrawn, as was Mr. Rose’s. Mr. Solc then became a Crown witness. He testified that it was his understanding that his charge was withdrawn in exchange for his testimony as a witness for the Crown. It was Mr. Solc who put Mr. Da Cruz, Mr. Araujo and Mr. Vireira in touch with his lawyer. All three became Crown witnesses at trial.

[44] Mr. Solc testified that he started on the Widmer site in October of 2020. He had been fired from his previous job for drinking on site. Mr. Solc testified that he was now sober and did not drink on the Widmer worksite.

[45] Mr. Solc knew Mr. Tome from previous jobs. It was Mr. Tome who offered him the job on the Widmer project after Mr. Solc told him that he was sober.

[46] On the day of the incident Mr. Solc was the swamper in the hole responsible for rigging the loads of concrete waste being hoisted out of the project. He rigged the load that failed and killed a worker.

[47] Mr. Solc admitted that he rigged the fatal load by attaching the crane hooks directly to the rebar embedded in the waste concrete block. He testified that he had rigged about 5 or 6 loads that morning by himself, all the same way.

[48] In his evidence he gave various explanations for why and how this occurred.

[49] When first asked why he hooked up the concrete block to the crane in this manner Mr. Solc responded, “this is how we were doing it before, it’s just the best way I thought”.

[50] When asked what he observed when he first arrived on the job in terms of rigging Mr. Solc responded, “we hooked up right by the rebar, sometimes we choke it too, if we were in a big rush we hook to the rebar, if we had time we take it by the box and do it nice”.

[51] At one point Mr. Solc was asked why there was rebar in the blocks and he responded, “to pull it out of the wooden box they put it in, so you could put it on a 4x4 and choke it”.

[52] At another point he testified that prior to that day he used to choke the loads. Choking meant that he picked up the block, put it on a 4x4, ran chains around it and then hooked them up to each other. He testified that this did not include the wooden bin. According to Mr. Solc he had done approximately 20-30 loads using the choking method without a wooden bin.

[53] According to Mr. Solc the waste concrete was put into wooden bins by the shotcrete guys “totally wrong”. He testified that anywhere else that he had worked “they” put sauna tubes in the bottom of the wooden bins and vibrated the load to make it solid. He explained that sauna tubes were half moon shaped tubes that were put in the bottom of the wooden bin, the concrete was then poured on top and the tubes made two spots for the chains to go when choking the load.

[54] When asked if he was shown how to rig a load at the Widmer project, Mr. Solc responded, “no one ever showed me, I seen them when I first got there”. He went on to testify that, “I explained to them and said you should be using sauna tubes, I just came from another job and you shouldn’t be doing it that way…I told them you have to vibrate the boxes and put sauna tubes in them because they have garbage and stuff in there and stuff falling off”. It was Mr. Solc’s evidence that he said this to Mr. Tomes in his first week on the job.

[55] According to Mr. Solc he told “them” repeatedly about this problem and nobody listened to him. He testified that he complained to Mr. Bakir “plenty of times”. He also testified that he had told Mr. Sidhom, “probably once within a couple of weeks of being on the job” and had told Mr. Peres, “a few times, probably two or three”. According to Mr. Solc, all of the witnesses were lying when they testified that they never received or heard of any complaints from Mr. Solc. It was his evidence that his mistake was “not writing it down”.

[56] At another point Mr. Solc was asked when he started rigging the loads without choking them. In response he testified that one time the load “just blew up” because the “guys” were supposed to “vibrate” the loads but didn’t. According to Mr. Solc, a worker was almost hit when this happened. However, he also testified that, “before that we would just go because it’s fast and it would just go up with the steel rebar” and that “more than half the time” he rigged the concrete block with the hook on the rebar.

[57] Later Mr. Solc testified that he changed his method from choking the load to just using the rebar “right away, first couple of weeks”.

[58] When asked how he decided to rig, Mr. Solc responded, “I would look”. When asked who made the decision to rig it one way or the other he responded, “I don’t know”.

[59] At another point in his evidence Mr. Solc testified that he received no training at the Widmer site on how to rig a waste concrete block and that no one showed him or told him what to do.

[60] When asked if he had observed others rigging the blocks prior to the incident, Mr. Solc said he “thought so” and that it was rigged by the rebar. When asked who did that, Mr. Solc responded, “think was me and Mani we did it the one day”.

[61] When asked what he recalled about hooking up a load with Mani, Mr. Solc responded, “usually first thing in the morning when they spray there’s a big rush and we can hook up two blocks in one shot…plenty of times he [Mani] hook one up and I hook the other”. When asked when this occurred Mr. Solc responded, “every other day pretty much”.

[62] On the day of the incident Mr. Solc testified that Mr. Tavares, Mani, was his supervisor.

[63] Mr. Solc testified that he thought that when he arrived on the site that morning there were 4-6 concrete waste blocks and they were all out of the wooden bins. When asked if he was certain, Mr. Solc said not 100%. Nor could he recall if the blocks were sitting on 4x4s.

[64] In cross-examination Mr. Solc agreed that when he rigged the fatal load he was not following his training as a swamper which required him to attach the rigging to fixed anchor points or choke or basket the load.

(vi) The Evidence of the Workers on the Site

Christopher Peres

[65] Christopher Peres was the health and safety representative for Limen Group. One of Mr. Peres’ responsibilities was to conduct orientations with each Limen worker when they started on site. He also held weekly safety talks on the job site referred to as “toolbox talks”.

[66] Mr. Peres conducted Mr. Solc’s orientation when he started at the Widmer site. The orientation included a review of the health and safety procedures on the site which included site specific hazards. Safe rigging and hoisting was one of the topics covered and it included the safe hoisting and rigging of waste concrete blocks. Mr. Solc was also reminded, as were all workers, of his right to refuse unsafe work. Mr. Peres did not at any time receive any complaints from Mr. Solc about safety on the site.

[67] The four safe and acceptable methods of rigging and hoisting waste concrete out of the site were reviewed with Mr. Peres. He testified that the method he saw most frequently used was to use the wooden bin, choked and secured, to remove the waste concrete.

[68] Mr. Peres testified that it was common practice in the industry to lift the waste concrete blocks directly by the embedded rebar, but only for the purpose of lifting it a few feet, either to get it out of the bin or to choke the block itself.

[69] He did recall having seen the waste concrete being lifted out of the site by the embedded rebar on one occasion. It was a weekend when the site was cleared of all workers. Mr. Peres could not recall if the block was choked or not but agreed that it probably was.

[70] Mr. Peres was present on site the day of incident but did not see any of the waste concrete loads being lifted that morning.

Francisco Da Cruz

[71] At the time of the incident Mr. Da Cruz was employed by Limen Group and working as a carpenter on the Widmer project. He was on site that day and standing about 20 feet away from Mr. Solc at the time of the incident.

[72] It was Mr. Da Cruz’s evidence that he saw Mr. Solc rig the load that failed by attaching the crane directly to the embedded rebar in the waste concrete block. In his evidence in chief Mr. Da Cruz testified that, prior to the fatal incident, all of the waste concrete blocks were removed in that manner.

[73] Mr. Da Cruz described Mr. Tavares as being “in charge” of all the people who worked for Limen including the carpenters and swampers. He testified that he had seen Mr. Tavares rigging loads directly by the embedded rebar “many times”, and that Mr. Tavares had also been present when Mr. Solc rigged loads this way.

[74] In cross-examination the four safe and acceptable methods of removing the waste concrete blocks were put to Mr. Da Cruz. He testified that he had never seen the waste concrete being removed inside the wooden bins. Mr. Da Cruz did however agree that he had seen the other three methods being used. He testified that he had seen Mr. Solc lift the waste concrete blocks a few feet to get them out of the wooden bins, choke the load of waste concrete and take it up that way without the wooden box. According to Mr. Da Cruz’s evidence in cross-examination Mr. Solc used this method about 75% of the time.

[75] During the course of cross-examination Mr. Da Cruz testified, for the first time, that on the day of the incident he had helped Mr. Solc to rig the fatal load. According to Mr. Da Cruz he helped by attaching the chains directly to the embedded rebar on the left side of the waste concrete block.

[76] Mr. Da Cruz agreed that this was the first time that he had ever said that he had been involved in rigging the fatal load. When it was put to him that it was Mr. Solc’s evidence that nobody helped him that day, Mr. Da Cruz responded that that was not true.

[77] Mr. Da Cruz testified that he had suffered a head injury as a child and had difficulty with memory as a result.

Maurilio Araujo

[78] Mr. Araujo was also a carpenter working for Limen Group at 38 Widmer. He was on site on the day of the incident and standing beside the deceased.

[79] Mr. Araujo testified that he watched Mr. Solc rig the fatal load by attaching the crane directly to the waste concrete block by the embedded rebar. He at first testified that Mr. Tavares was standing beside Mr. Solc at the time and he heard Mr. Solc express concern about the unsafe rigging and tell Mr. Tavares that that was not a safe procedure. Mr. Araujo testified that Mr. Solc told Mr. Tavares that he wanted to choke the load with the belts and not attach the crane directly to the block. According to Mr. Araujo, Mr. Tavares responded, “just hook it up”.

[80] When later asked how many loads he had seen being rigged by Mr. Solc that morning, Mr. Araujo testified two. He then corrected his earlier testimony and testified that it must have been the first load and not the fatal one where he had seen Mr. Tavares with Mr. Solc. Mr. Araujo explained that by the time that Mr. Solc rigged the second load Mr. Tavares had walked away and was talking to Mr. Sidhom on the other side of the project.

[81] Mr. Araújo testified that he had seen waste concrete blocks being lifted many times and always with the hook attached directly to the rebar in the block. According to Mr. Araujo they were lifted that way “every time” and he had never seen wooden bins being used or the loads being choked.

Miguel Vireira

[82] Mr. Vireira was another Limen carpenter working at Widmer on the day of the incident.

[83] Mr. Vireira saw the fatal load as it fell but he did not see it prior, nor did he recall having seen any other loads being lifted that morning. However, he did testify that he had seen waste concrete being removed from the site before. Mr. Vireira testified in chief that the waste concrete was removed by attachment directly to the embedded rebar. According to Mr. Vireira this happened about 90% of the time.

[84] Mr. Vireira testified that most of the time it was Mr. Solc who rigged the loads this way, but he had also seen Mr. Tavares doing it. It was Mr. Vireira’s evidence that Mr. Solc was not comfortable lifting the loads directly by the embedded rebar, and that Mr. Solc had told him that the loads were supposed to be choked with straps underneath them.

[85] Mr. Vireira testified that he had seen Mr. Tavares talking to Mr. Solc about the loads a couple of times and directing Mr. Solc to “just hook it up and get it out of here”. Mr. Vireira could not remember when this happened, just that it was before the incident.

[86] In cross-examination the four safe and acceptable methods of lifting the waste concrete blocks were put to Mr. Vireira and he agreed that he had seen these methods being used. Mr. Vireira was shown a still from the video of the fatal load. He testified that it looked “horrible” and if he ever saw a load being rigged this way he would say something.

(vii) The Expert Evidence – Saed Khorsand

[87] The Crown called Saed Khorsand, the Acting Provincial Engineer for the Ontario Ministry of Labour, as a witness. Following a strenuously contested hearing I qualified Mr. Khorsand to give expert opinion evidence in the principles of structural engineering and engineering practices for hoisting and rigging. [1] In particular, he gave expert opinion evidence as to what constitutes a suitable attachment point to hoist concrete blocks more than a few feet in the air.

[88] Despite vigorous cross-examination on the qualification voir dire, and on the trial proper, Mr. Khorsand’s opinion as to the cause of the accident was ultimately uncontested.

[89] The load of waste concrete that failed was attached to the crane by hooking the crane chains directly to pieces of bent rebar that were embedded in, and sticking out of, the concrete block. The attachment point, the embedded rebar, was insufficient to bear the weight of the concrete block being lifted. As a result it fell.

[90] Mr. Khorsand could not say if the weight of the concrete caused the rebar to bend further, open up and drop the load, or if it caused the chain hooks to open and drop the load. Either way the load of waste concrete failed because it was rigged directly to the embedded rebar which was insufficient to bear its weight.

B. The Defence Evidence

(i) Emannuel Quadros

[91] Emannuel Quadros was the health and safety manager for Limen Concrete Finishing Corp.

[92] In his evidence Mr. Quadros reviewed Limen’s “Health, Safety and Environment Policies and Procedures”, “Employee Health and Safety Orientation Handbook” as well as the Safe Work Practices for “Hoisting and Rigging”, “Rigging” and “Tower Crane Operating Procedures”.

[93] Mr. Quadros gave evidence with respect to the mandated training for supervisors and workers on Limen job sites. He testified that every three years he and the supervisors, including Mr. Tome and Mr. Tavares, were required to take a training course in working at heights. Limen required all workers to go through a safety orientation on the job site. Workers like crane operators and swampers were required to be properly trained and provide proof of their training.

[94] Mr. Quadros testified that Limen Group was committed to the health and safety of everyone at the worksite and that safety was taken very seriously at the Widmer project. Prior to the incident he attended the Widmer site at least half a dozen times. Mr. Quadros was there for the initial start-up where he met with the site staff to develop a full health and safety plan, go through the orientation program and review the job hazard analysis.

[95] The job hazard analysis involved a green, orange and red light system with red signifying the most high risk jobs. Hoisting and rigging by crane was a red light job, meaning the highest potential for hazard. The hazards for each job were identified and safety controls put in place to bring the hazard level down to green. With respect to hoisting and rigging, Mr. Quadros explained that ensuring that no workers are under the load is one of the safety controls for which the swamper and crane operator are responsible.

[96] The health and safety plan at Widmer involved morning safety inspections, referred to as Pre Start Inspections [PSI] and weekly toolbox talks on safety issues.

[97] Mr. Quadros communicated regularly with Chris Peres, the Limen safety representative on the Widmer project. He testified that prior to the fatal incident he had not received any worker complaints with respect to unsafe work from the Widmer project, nor did he learn of any workers refusing to work because of safety concerns.

[98] Mr. Quadros testified that Mr. Tome was the supervisor in the formwork division of Limen and responsible for the carpenters, swampers and crane operators on the Widmer project. Because Mr. Tome’s responsibilities often took him off the site, others like Mr. Tavares were responsible for supervision in his absence. Mr. Tavares as a working foreman was responsible for assigning work to the workers and enforcing Limen’s health and safety practices. He reported to Mr. Tome. Four months prior to the incident, in August of 2020, Mr. Tavares completed the supervisor training program.

(ii) Octavio Tome

[99] Mr. Tome was a trained supervisor and the site supervisor for the Limen formwork crew at 38 Widmer. Mr. Tavares was a carpenter foreman who reported to Mr. Tome. Mr. Tome testified that he had the authority to hire, fire and discipline workers whereas Mr. Tavares did not.

[100] Mr. Tome was aware of Mr. Solc’s history of alcohol use on previous job sites. He spoke with Mr. Tavares about this and asked Mr. Tavares to keep an eye on Mr. Solc and make sure that he was fit for work. Because Mr. Solc had a suspended driver’s license, Mr. Tome allowed Mr. Tavares to use a company vehicle to drive Mr. Solc to work.

[101] Mr. Tome testified that he did not observe Mr. Solc doing anything on the Widmer site that concerned him. From what Mr. Tome observed of Mr. Solc prior to the incident he was doing his work as a swamper safely and competently. Mr. Tome did not receive or learn of any complaints about Mr. Solc on the Widmer project.

[102] Mr. Tome testified that there were approximately 200 lifts a day done at the site including lifts of waste concrete blocks. Of the four safe and acceptable methods of removing waste concrete from the site Mr. Tome recalled seeing all but the method where the waste concrete block was choked and lifted out by itself without a bin.

[103] Mr. Tome testified that he did not authorize or direct Mr. Solc to use embedded rebar as the attachment point to hoist waste concrete blocks out of the site.

[104] Mr. Tome testified that hoisting waste concrete waste blocks over the site using embedded rebar as the attachment point was unsafe and unacceptable. He testified that if he ever saw a worker doing that they would lose their job immediately. Mr. Tome testified that there were two problems with the fatal load. Firstly, Mr. Solc rigged it improperly and secondly it was lifted over workers.

[105] Mr. Tome was at the 38 Widmer site on December 14 but left at some point in the morning prior to the incident to attend to business elsewhere.

III. ISSUES AND THE LAW

(i) The Burden of Proof

[106] These are strict liability offences. As such, the Crown must prove the factual elements of the offence, the actus reus, beyond a reasonable doubt. It then falls to the defendant(s) to prove, on a balance of probabilities, that either reasonable care was taken not to commit the act, or a reasonable mistake of fact was made which, if true, would have rendered the act lawful.

[107] In a strict liability offence the actus reus does not include a mental element: R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299.

[108] The actus reus is the prohibited act set out in the particulars of the information. The Crown is bound by the particulars set out in the information and must prove that what is alleged in them occurred: R. v. Brampton Brick Ltd., [2004] O.J. No. 3025 (C.A.).

[109] In an OHSA prosecution such as this it is the creation of the hazard that is the prohibited activity. Issues of why, how or who are not relevant to the determination of the actus reus, rather they are issues going to the defence of due diligence: R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154.

[110] The question of what it is that the Crown must prove was succinctly summarized by Keast J. in R. v. National Wrecking Co., [2005] O.J. No. 3538 (C.J.):

The prosecution does not have to prove the defendants had knowledge of the danger or hazard. The prosecution would have to prove the existence of the hazard only. The prosecution does not have to show why the accident happened or that the accident was reasonably foreseeable in the way it actually happened. That does not mean the foreseeability of a hazard cannot be an important issue. Foreseeability of a hazard is properly to be considered as part of the due diligence defence.

[111] With respect to OHSA prosecutions, Osborne A.C.J.O., speaking for the Court of Appeal in R. v. Timminco Ltd., 2001 ONCA 3494, [2001] O.J. No. 1443 (C.A.), affirmed that:

As a policy consideration, where the hazard in question is caused by equipment that the employer has a special knowledge and control over, it is appropriate that the employer bear the burden of proving a defence ….the 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.

[112] The onus is on the crown to prove beyond a reasonable doubt that the precautions particularized in the information are ones that a reasonable employer in the circumstances of the company charged ought to have implemented for the protection of the worker: R. v. Inco Ltd., [2001] O.J. No. 4983 (S.C.J.).

[113] Once the act has been established the defendant may raise a defence of due diligence and show that it was in no way negligent with respect to the particular act. The onus is on the defence to establish due diligence on a balance of probabilities.

[114] Foreseeability is an issue that arises at the due diligence inquiry, and not at the stage of determining whether the crown has proved the particular act:

The reasonable foreseeability of danger resulting from an act or omission which constitutes prima facie proof of the offence alleged is one of the factors to be considered in deciding whether an accused took all the care which a reasonable man might have been expected to take in the circumstances.

R. v. Rio Algom Ltd. (1988), 1988 ONCA 4702, 66 O.R. (2d) 674 (C.A.) at 682.

[115] Similarly, worker negligence or employee misconduct are not issues that go to the actus reus of the offence. The importance of strict liability for employers in the construction industry was affirmed by the Court of Appeal in Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769, [2007] O.J. No. 4339 (C.A.) at paras 23-24:

…”one of the purposes of the [OHSA] 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 any other.”

“workplace safety regulations are not designed just for the prudent worker. They are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless.” In our view, this principle extends to deliberate acts of employees while performing their work.

[116] This is not to say that negligence or even recklessness on the part of the employee is never relevant. It may be relevant to the due diligence inquiry and is an issue to be considered in determining whether the accused employer or supervisor took all the care that a reasonable person would be expected to take in the circumstances, or if they made a mistake of fact.

(ii) Interpreting and Applying the OHSA

[117] The OHSA is a public welfare statute which should be interpreted broadly and in a manner consistent with its public welfare purpose. This has been affirmed by appellate courts on numerous occasions:

The OHSA is a remedial public welfare statue 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.

Ontario (Ministry of Labour) v. Hamilton (City), 2002 ONCA 16893, [2002] O.J. No. 283 (C.A.) at para 16.

[118] The broad purpose of the statute is to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace. It should be interpreted in a manner consistent with its broad purpose: R. v. Greater Sudbury (City), 2023 SCC 28, R. v. Ellis-Don Limited (1990), 1990 ONCA 6968, 1 O.R. (3d) 193 (C.A.), Timminco Ltd. supra.

(iii) The Position of the Defendants

[119] Mr. Keith, who represents all three remaining defendants, submits that the Crown has not proved the essential elements of the offence with respect to any of the charges. Alternatively, he raises due diligence and submits that Mr. Solc, and Mr. Solc alone, was responsible for the accident and the death of the worker.

IV. ANALYSIS

A. Has the Crown Met Its Burden?

(i) The Essential Elements of the Offence

Count One – The Prohibited Act

[120] Count one is a charge under section 25(1)(c) of the OHSA of failing, as an employer, to ensure that the measures and protections prescribed by section 172(1) of the Regulations were carried out at the workplace at 38 Widmer Street.

[121] Count one is particularized as follows:

Failing to ensure that waste concrete blocks to be hoisted by crane utilized attachment points that were suitable for that use.

[122] The prohibited act captured by the charge as particularized is hoisting waste concrete blocks using attachment points that were not suitable for that use. Therefore, the act that the Crown must prove beyond a reasonable doubt is that waste concrete blocks were hoisted by crane utilizing attachment points that were not suitable for that use. The use here being hoisting waste concrete blocks up and out of the worksite.

Counts Two, Five and Six – The Prohibited Act

[123] The remaining counts are charges under section 25(2)(h) and 27(2)(c) of the OHSA of failing, as an employer or supervisor, to take every precaution reasonable in the circumstances for the protection of a worker.

[124] Those counts are all particularized as follows:

Failing to take the reasonable precaution of ensuring that workers engaged in the movement of waste concrete blocks at a construction site were sufficiently trained and/or supervised regarding the hazard of using embedded rebar as the hoisting points.

[125] The prohibited act captured by those charges as particularized is the hazardous movement of waste concrete blocks at the construction site by using embedded rebar as a hoisting point.

[126] Proof that waste concrete blocks were hoisted and moved at the site using embedded rebar as a hoisting point, and that that method of hoisting the blocks was hazardous in the circumstances, is the act that the Crown must prove beyond a reasonable doubt with respect to counts 2, 5 and 6. Again, the circumstances here being hoisting waste concrete blocks up and out of the worksite.

The Roles of the Parties

[127] Counts 1 and 2 charge the corporate defendant as an employer. It is therefore an essential element of those offences that on December 14, 2020 the corporate defendant was an employer at the 38 Widmer workplace as defined by the OHSA.

[128] Count 5 charges Octavio Tome as a supervisor, and therefore it is an essential element of the offence that on December 14, 2020 he was a supervisor as defined by the OHSA.

[129] Count 6 charges Emanuel Tavares as a supervisor, and therefore it is an essential element of the offence that on December 14, 2020 he was a supervisor as defined by the OHSA.

(ii) The Evidence of the Actus Reus

[130] The actus reus of count 1 is the use of an unsuitable attachment point to hoist waste concrete blocks.

[131] The actus reus of counts 2, 5 and 6 is the hazardous use of embedded rebar as an attachment point for hoisting waste concrete blocks.

[132] It is clear from the evidence of Mr. Solc, and apparent in the video, that the attachment point used to rig the fatal load was the embedded rebar. Using this attachment point alone the load was hoisted up and over the worksite. Every witness who was asked testified that this was an inadequate and unsafe method of hoisting waste concrete out of the excavation site. The evidence was clear and uncontradicted that the embedded rebar was not a suitable attachment point for hoisting waste concrete blocks more than a few feet.

[133] Even if the precise mechanics of what occurred while the load was in the air cannot be determined, what can be determined is that the load was improperly and unsafely rigged, it failed as a result, the block fell and a worker was crushed and killed.

[134] I find that the Crown has proved beyond a reasonable doubt this essential element of count 1: on December 14, 2020 an unsuitable attachment point was used to hoist waste concrete blocks from the excavation site to ground level at the Widmer job site.

[135] I also find that the Crown has proved beyond a reasonable doubt this essential element of counts 2, 5 and 6: on December 14, 2020 embedded rebar was used as an attachment point for hoisting waste concrete blocks up and out of the site and it was hazardous.

(iii) Is Limen Group Const. (2019) Ltd. an employer?

[136] Employer is defined in the OHSA as:

A person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner constructor, contractor or subcontractor to perform work or supply services.

[137] Interpreting the definition broadly, and in keeping with the public welfare purpose of the Act, an employer is not defined solely by the terms of a contract. As stated by Bellamy J. in R. v. Enbridge Gas Distribution Inc., 2010 ONSC 2013 at para 36:

All employers working around the same project have the responsibility to ensure the safety not only of their own employees, but also of others who are working on the project. Their responsibility to exercise that due diligence should not be dependent on their contractual relationship to other companies, nor on whether workers on the project work directly for them or their subcontractor, nor on whether their function is a discrete one.

[138] With respect to counts 1 and 2 charging the corporate defendant, Mr. Keith takes the position that the Crown has not proved beyond a reasonable doubt that Limen Group Const. (2019) Ltd. was the employer.

[139] He submits that while there is evidence that Limen Group Const. (2019) Ltd. was an employer at the 38 Widmer construction site, this is not enough. It is Mr. Keith’s position that the Crown must further prove that the corporate defendant was the direct employer with respect to the formwork crew, Mr. Solc and the deceased.

[140] Mr. Keith urges a narrow interpretation of the term employer. This approach ignores the larger responsibility that Limen Group had as the trade contractor and is inconsistent with the principles outlined by the Court of Appeal in R. v. Wyssen, 1992 ONCA 7598, [1992] O.J. No. 1917 (C.A.) and most recently by the Supreme Court in R. v. Greater Sudbury (City), 2023 SCC 28, a decision released after submissions were heard in this case. In Greater Sudbury the (four-judge) majority affirmed Wyssen and found that a person can be an employer under the Act even where they lack control over the worker or the workplace. In affirming the broad and purposive approach to be taken to the OHSA the majority stated at para. 5:

This Act is specifically designed to expand historically narrow safeguards and seeks to promote and maintain workplace health and safety by expressly imposing concurrent, overlapping, broad, strict, and non-delegable duties on multiple workplace participants in what was known as the “belt and braces” strategy.

[141] Here there is documentary evidence that Limen Group Const (2019) Ltd was an Employer. Exhibit 15 is a notice where Limen Group is registered as the employer on the project. Exhibit 16 is a contract between the owner Concord and Limen Group Const. (2019) Ltd., the trade contractor.

[142] It was clear from the evidence of all of the workers who testified that they understood that “Limen” was the contractor and in charge of the project.

[143] I am satisfied that on December 14, 2020 Limen Group Const. (2019) Ltd. was an employer at the workplace at 38 Widmer Street in Toronto, and was the employer of the formwork crew on site which included Mr. Tome, Mr. Tavares, Mr. Solc and the deceased. The Crown has established this essential element beyond a reasonable doubt.

(iv) Are Octavio Tome and Emanuel Tavares supervisors?

[144] A supervisor is defined in the OHSA as a person who has charge of a workplace or authority over a worker. The jurisprudence is clear that the person must have hands-on authority, but need not exercise that authority. The determination is an objective one based on the actual powers and responsibilities of the individual. Whether or not the person was given the title of supervisor is of no import: R. v. Adomako, [2002] O.J. No. 3050 (C.J.), R. v. Walters, [2004] O.J. No. 5032 (S.C.J.).

[145] Multiple witnesses described Mr. Tome as the site supervisor, and Mr. Tome himself testified that he was a site supervisor for the formwork at 38 Widmer.

[146] With respect to count 6 charging Mr. Tavares, Mr. Keith takes the position that the Crown has not proved that Mr. Tavares was a supervisor as defined by the OHSA.

[147] There was evidence from multiple witnesses including Mr. Bakir and Mr. Sidhom that Mr. Tavares was Mr. Tomes’ lead hand and responsible for supervising in Mr. Tomes’ absence. At the time of the accident Mr. Tomes’ was not on-site leaving Mr. Tavares responsible for supervising the workers.

[148] I accept the evidence of both Mr. Bakir and Mr. Sidhom on this point. There is no reason on the record before me to reject their evidence that Mr. Tavares was responsible for supervising workers.

[149] Mr. Solc testified that Mr. Tavares was his supervisor. Mr. Da Cruz testified that Mr. Tavares was “in charge” of the people working for Limen including the swampers and carpenters. Both Mr. Araujo and Mr. Vireira testified that Mr. Tavares gave direction to Mr. Solc.

[150] While I treat the evidence of Mr. Solc, Mr. Da Cruz, Mr. Araujo and Mr. Vireira with caution for reasons outlined below, this aspect of their evidence I accept. It was clear from the evidence of all the workers, and the other witnesses, that Mr. Tavares had authority over the formwork crew including the swampers.

[151] The Crown has established beyond a reasonable doubt that both Mr. Tome and Mr. Tavares were supervisors.

B. The Defence of Due Diligence

(i) Establishing Due Diligence

[152] Once the actus reus has been established beyond a reasonable doubt the defendants may escape liability by proving, on a balance of probabilities, that they exercised due diligence. There are two branches to the defence of due diligence. On the first branch it falls to the accused to establish that all reasonable steps were taken to avoid the incident. Alternatively, on the second branch, the accused may establish belief in a mistaken set of facts which would render the act or omission innocent: Sault Ste. Marie, at para. 60, Dofasco, at paras 29-30.

[153] What constitutes reasonable steps is fact specific:

The due diligence taken must be specific to the hazard in issue. Employers must take every reasonable precaution to protect their employees in the work place. The reasonable care is inextricably linked to the factual settings of each case. Thus, a variable standard of care is required that can be raised or lowered in accordance with the special “circumstances of each factual setting”.

Ontario (Ministry of Labour) v. Wal-Mart Canada Corp., [2017] O.J. No. 5818 (S.C.J.).

[154] Reasonable steps, or reasonable care, means “all reasonable care that a reasonable person would have taken in the circumstances”. It does not mean that the accused must take each and every precaution that would be reasonable to take in the circumstances. Rather, the reasonable foreseeability of danger is a factor to be considered. The question is, did the accused take all the care which a reasonable person might have been expected to take in the circumstances: R. v. Rio Algom Ltd., 1988 ONCA 4702, [1988] O.J. No. 1810 (C.A.) at paras. 24-25.

[155] In this case, to make out a defence of due diligence the defendants must establish that all reasonable care was taken to ensure that Mr. Solc knew how to safely and properly rig a load of waste concrete, and that he was supervised in a manner appropriate to the level of risk of the activity.

[156] Mistake of fact, in the circumstances of this case, does not arise independently of reasonable care. In other words, in the circumstances of this case, it is not enough for the defendants to simply assert a belief that Mr. Solc was rigging the loads safely and in accordance with established industry training and practice. That belief must be reasonable and based upon steps that were taken to ensure that workers like Mr. Solc did what they were supposed to do.

(ii) The Position of the Defendants

[157] It is the position of Mr. Keith that Mr. Solc was solely responsible for the accident. His client the corporation Limen Group took all reasonable steps to ensure that suitable attachment points were used to hoist the waste concrete blocks by crane.

[158] His clients, the corporation, Mr. Tome and Mr. Tavares took all reasonable steps to train and supervise the workers on the job site with respect to the movement of waste concrete blocks and the hazards of using embedded rebar as the hoisting point.

[159] The defence of due diligence was not advanced separately as between his clients [2]. Rather, Mr. Keith submits that his clients collectively were in no way negligent.

[160] Mr. Keith submits that Mr. Solc acted alone and without the knowledge of his employers or supervisors. His client the corporate defendant did all that it could to ensure that its workers engaged in safe work practices. His client Mr. Tome properly supervised his workers and cannot be held accountable for the rogue actions of a negligent employee. Similarly, his client Mr. Tavares had no knowledge that Mr. Solc was improperly rigging the loads and was in no way responsible for the actions of Mr. Solc.

(iii) Worker Negligence

[161] Ultimate responsibility for safety on the worksite rests with the employer. Where a supervisor or person in charge does not exercise due diligence, the responsibility for the failure rests with the company. Every employer has a duty to see that the workplace is safe, and is not entitled to say that it is someone else’s responsibility: Greater Sudbury (City), R. v. Seeley & Arnill Aggregates Ltd., [1993] O.J. No. 443 (Ont. Ct. (Gen. Div.)) at paras. 17-18., R. v. Structform International Ltd., [1992] O.J. No. 1711 (G.D.).

[162] The obligation on employers and supervisors to protect workers extends to the obligation to protect workers from themselves, including workers who deliberately ignore company procedures and systems for the sake of just getting the job done. As affirmed by the Court of Appeal in Dofasco at para 24:

“…workplace safety regulations are not designed just for the prudent worker. They are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless.” In our view, this principle also extends to deliberate acts of employees while performing their work.

[163] In Dofasco the worker made a conscious decision to disobey an instruction or work practice in order to get his work done. This resulted in serious injury to the worker himself. The Court of Appeal was clear that placing responsibility “squarely on the shoulder of a worker” when a deliberate act is done by an employee in furtherance of productivity in the workplace undertaken for the employer is contrary to the purpose of the OHSA.

(iv) Training and Supervision of Limen Employees

[164] Both Mr. Quadros and Mr. Tome testified with respect to the health and safety procedures established by Limen Group and the general training required for their workers. I am satisfied that Limen Group generally established adequate safety procedures on the worksite and generally required their workers to be trained and qualified.

[165] What happened here is that a worker, Mr. Solc, did his job in an unsafe and hazardous manner. He used an unsuitable attachment point to rig a load of waste concrete up and over the worksite.

[166] Have the defendants established on a balance of probabilities that they were in no way negligent? In coming to this determination, the question to be asked is, were the actions of Mr. Solc the actions of a rogue employee acting against the training and direction of his supervisors and unbeknownst to them.

[167] On the facts of this case, the defendants must establish on a balance of probabilities that Mr. Solc’s actions were an isolated act of carelessness or recklessness which were unforeseeable and over which they had no control.

(v) Was this an isolated act?

[168] It was Mr. Solc’s evidence that “going up with just the rebar” was fast and easy. He testified that in the mornings when there was a spray there would be a big rush and he and Mani (Mr. Tavares) would “just hook up” the blocks without choking the load.

[169] When asked if he had been shown how to rig a load of waste concrete at the Widmer site, Mr. Solc testified that, “no one ever showed me, I seen them when I first got there”. However, he also testified that he had seen Mani do it this way and they had done it together.

[170] It was Mr. Solc’s evidence that on the day in question he had rigged “maybe five or six” loads that way, the last being the fatal one. Mr. Solc agreed that this was contrary to his training and that he did not always rig loads this way. However, it was his evidence that he had done it this way at the Widmer site before December 14, 2020.

[171] The video evidence shows three loads of waste concrete going up that way. Mr. Solc testified that Mr. Tavares was his supervisor that day.

[172] Mr. Solc was an unsophisticated witness. He was often and easily confused and his answers difficult to follow. He had a troubled past on which he was extensively cross-examined. He had a conviction for impaired driving, substance use issues and other criminal antecedence. His memory was poor. He did, however, admit that he and he alone rigged the fatal load. He ultimately admitted that the way that he rigged the fatal load was unsafe and wrong. I accept this aspect of his evidence. I also accept that Mr. Tavares acted as his supervisor. This aspect of his evidence is corroborated by Mr. Bakir, Mr. Sidhom and the other workers.

[173] Mr. Solc did not directly blame Mr. Tavares for what had occurred but did testify to having rigged loads this way with Mr. Tavares when they were in a rush. In his evidence he blamed the “shotcrete guys” for “doing it totally wrong” when they put the waste concrete into the wooden bins. He appeared to be offering this as some kind of explanation for how he rigged the loads. Mr. Solc also testified that he had complained about the shotcrete guys many times to Mr. Sidhom, Mr. Peres and Mr. Tome but never in writing. None of whom testified to having received any such complaints.

[174] It was clear from his evidence, and confirmed by the video, that the fatal load was not the first and only load of waste concrete that Mr. Solc had rigged directly by the embedded rebar.

[175] The accounts of all the witnesses differed as to what they had seen in terms of loads of waste concrete being removed from the site prior to the incident, both in numbers and in methods. This is not surprising given that most of the witnesses were not directly involved in the removal of the waste concrete and did not pay particular attention to it.

[176] Mr. Bakir, Mr. Sidhom and Mr. Tome testified that they had never seen loads of waste concrete being rigged directly by the embedded rebar on the Widmer site.

[177] Mr. Peres testified that he had seen this method used but only a few times and on a weekend when the site was cleared of workers. He agreed in cross-examination that when he saw this the load was probably choked.

[178] Mr. Sidhom testified that he had never seen waste concrete being hoisted without either a wooden or steel bin. Mr. Tome also testified that he had never seen this.

[179] Mr. Bakir testified that he had seen all four safe and acceptable methods including waste concrete blocks being lifted without a bin but choked.

[180] Mr. Vireira, Mr. Araujo and Mr. Da Cruz all testified to having seen waste concrete being rigged directly by the embedded rebar. They also all testified to having seen Mr. Tavares rigging loads this way in the presence of Mr. Solc.

[181] Mr. Vireira and Mr. Araujo both testified to having heard Mr. Tavares tell Mr. Solc to, “just hook it up…get it out of here”, meaning to hook the waste concrete directly by the embedded rebar without choking the load.

[182] Mr. Araujo testified that he had seen about 20 loads of waste concrete being lifted out of the site, including the ones earlier that day which were hoisted directly by the embedded rebar and not choked. It was his evidence that on the Widmer project they were hoisted that way “pretty much every time”.

[183] Mr. Araujo testified that he had heard Mr. Solc complain to Mr. Tavares earlier that morning about the unsafe rigging and in response Mr. Tavares directed Mr. Solc to “just hook it up”. This was not the fatal load but the one before. By the time Mr. Solc hooked up the fatal load Mr. Tavares had walked away and was talking to Mr. Sidhom.

[184] Mr. Vireira testified that he had seen waste concrete being removed directly by the embedded rebar, “most of the time, about 90%”. Mr. Vireira testified that usually it was Mr. Solc rigging the loads this way, but that he had also seen Mr. Tavares doing it. Mr. Vireira also testified that he had heard Mr. Tavares directing Mr. Solc to “just hook it up and get it out of here”, although he could not recall when this was.

[185] Mr. Da Cruz gave evidence with respect to the fatal load which I cannot accept. He testified, for the first time at trial, that he helped Mr. Solc to rig the fatal load. This is inconsistent with Mr. Solc’s evidence that he had rigged it himself. It was clearly not true. No other witness saw Mr. Da Cruz with Mr. Solc at the time. Why he would testify to something so obviously untrue is not clear and leaves me unable to rely on his evidence where it is uncorroborated.

[186] Mr. Vireira and Mr. Araujo, both friends of Mr. Solc, were clearly upset by the incident and appeared to harbour some animosity towards Limen Group and their supervisors. Mr. Solc, while admitting responsibility for the incident, had an interest in deflecting that responsibility on to his employer.

[187] I treat all of their evidence with caution.

[188] The video evidence from the day of the incident shows three loads of waste concrete being lifted directly by the embedded rebar. The fatal load was not the only load to be rigged this way that day. The fact that neither the swamper up top nor the crane operator stopped any of the loads is evidence that this was not an unusual event on the Widmer site. While I do not accept Mr. Araujo’s evidence that this was the only manner in which loads were lifted, I do accept that it was not the first time that it had happened.

[189] Mr. Tavares was a working foreman. Mr. Da Cruz’s evidence that he was in charge of the workers was corroborated by Mr. Sidhom and Mr. Bakir. Mr. Solc testified that he worked with Mr. Tavares rigging the waste concrete blocks. All of the other workers who testified had seen Mr. Tavares rigging waste concrete blocks with Mr. Tavares. This makes sense given their respective roles on the site.

[190] The video evidence of the two earlier loads is again circumstantial evidence from which it can be inferred that rigging waste concrete directly by the embedded rebar was not an unusual occurrence. The video shows that not only had it happened twice before that day, but also demonstrates that this was not unusual enough to garner the attention of the up top swamper, the crane operator or anyone on the site that day who saw the lifts.

[191] Hooking the waste concrete directly by the embedded rebar was obviously the easiest and fastest way to remove it from the excavation site. It did not require taking the time and extra steps to choke the load, and it also meant that the wooden bin did not have to be returned back to the excavation site. Rigging the waste concrete in this manner would be the most efficient way to, “just hook it up and get it out of here”, as Mr. Solc, Mr. Araujo and Mr. Vireira testified Mr. Tavares directed Mr. Solc to do.

[192] Mr. Tavares did not testify. This leaves an absence of evidence to contradict the direct evidence of the witnesses who testified that Mr. Tavares rigged loads of waste concrete with Mr. Solc and directed him to “just hook it up and get it out of here”.

[193] There is no explanation before me for why Mr. Solc would suddenly, and of his own volition, decide to go rogue and abandon his training on December 14, 2020. He had worked on the site for approximately two months as a swamper and had been involved in many lifts of waste concrete. When he rigged the first load that day by attaching directly to the embedded rebar without choking the load the crane operator did not stop him. Nor did the up top swamper complain. Two more loads were rigged this way without complaint.

[194] The evidence before me demonstrates that rigging the waste concrete blocks directly by the embedded rebar was not a one off occurrence, nor was it an occurrence that caused alarm on the Widmer site.

[195] It is trite to say that some, all or none of the evidence of a witness may be accepted. While the evidence of Mr. Solc, Mr. Vireira and Mr. Arauja was not entirely reliable or credible I do accept the evidence of the witnesses who testified that they had seen Mr. Solc rigging loads with Mr. Tavares in this manner. I also accept the evidence that on at least one occasion Mr. Tavares told Mr. Solc to “just hook it up”.

[196] At best Mr. Solc was not sufficiently supervised. At worst he was directed by his supervisor to perform his job in this hazardous and ultimately fatal manner.

[197] The responsibility for the failure of a supervisor or someone in charge rest with the company: Timminco, at para 27, R. v. Seeley & Arnill Aggregates Ltd. (Ont. Ct. (Gen. Div.)) at para 17.

[198] I am not satisfied that Mr. Tome or Mr. Tavares as supervisors have established on a balance of probabilities that they took all reasonable steps to prevent workers like Mr. Solc from taking the fastest, easiest and most hazardous route to rigging concrete waste blocks. Nor am I satisfied that Limen Group as an employer did.

V. CONCLUSION

[199] Hoisting waste concrete blocks up and out of a construction site is a highly dangerous activity. Faulty rigging carries the likelihood of death for anyone below. That is what happened here.

[200] Hoisting waste concrete blocks up and out of a construction site is also a highly visible activity. It involves the participation of at least three workers and would be visible to anyone on site.

[201] The more hazardous the activity the more vigilant an employer must be in training and supervising their workers. Hoisting materials by crane over a worksite populated with workers rates at the top of the danger chart. The lives of everyone that the object is hoisted over are at risk. Mr. Solc’s actions resulted in the death of a worker and endangered the lives of many. Allowing this kind of reckless behaviour to occur on a worksite is unacceptable.

[202] In order to establish due diligence in this case, the defendants must demonstrate, on a balance of probabilities, that Mr. Solc rigged the load directly to the embedded rebar contrary to his training and the instruction of his supervisors and without their knowledge. Given the high level of danger attached to the activity, and the high visibility, the defendants must also establish that this was an isolated occurrence.

[203] The evidence is uncontroverted that Mr. Solc rigged three loads directly to the embedded rebar that morning. The evidence is also clear that this was the fastest and easiest way to rig a load. There is evidence that Mr. Solc was seen doing this on prior occasions and in the company of Mr. Tavares. There is also evidence which I accept that, on occasion, Mr. Tavares directed Mr. Solc to the effect of, “just hook it up and get it out”.

[204] In considering all of the evidence in this case I find that it is improbable that Mr. Solc suddenly decided that morning, of his own volition, to set aside all of his training and go rogue. That it did not garner the attention of anyone that morning strongly suggests that this had happened before. The defence of due diligence has not been made out with respect to any of the charges or any of the defendants.

[205] I find that Limen Group (2019) Ltd. failed to ensure that waste concrete blocks to be hoisted by crane over the worksite at 38 Widmer utilized attachment points that were suitable for that use.

[206] I further find that Limen Group (2019) Ltd., Mr. Tome and Mr. Tavares all failed, as an employer and supervisors, to take the reasonable precaution of ensuring that workers engaged in the movement of the waste concrete blocks were sufficiently trained and supervised regarding the hazard of using embedded rebar as the hoisting point.

Released: November 29, 2023 Signed: Justice Newton-Smith

Footnotes:

[1] Ruling re Expert Evidence [2] The issue of conflict of interest was not raised by any party to these proceedings.