ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 17646-11AP

DATE: 2013-06-24

BETWEEN:

TEMBEC INC

– and –

HER MAJESTY THE QUEEN

Kevin D. MacNeill, for the Appellant
Shanatu Roy, for the Respondent

HEARD: November 14, 2012

THE HONOURABLE MR. JUSTICE ROBERT RIOPELLE

APPEAL

[1] A two-count Information was filed against Tembec under s. 25 (1)(c) of the Occupational Health and Safety Act (“OHSA”) as a result of injuries suffered by one of its workers when he fell more than three metres to the sawmill floor. Tembec was acquitted on the first count but appeals its conviction on the second count.

[2] S. 25 (1) (c) requires an employer to “ensure” that certain prescribed procedures are carried out on its workplace. The two prescribed measures in question are found in R.R.O. 851:

1. s. 13 (1)(b)(i) requires a guardrail at an open side of a platform: the “guardrail charge”; and

2. s. 85 requires a worker who is exposed to the hazard of falling, and the surface to which he might fall is more than three metres below the position where he is situated, to use or wear protective equipment that would prevent him from freely falling for a vertical distance of more than 1.5 metres : (the “fall arrest charge”) .

BACKGROUND

[3] Logs and lumber move through different stages of the production process on a myriad of conveyor belts. As the wood is conveyed from one area to another it is not unusual for some pieces to get caught up with each other. This is referred to as a “jam-up”. When a jam-up occurs the flow of wood is slowed or stopped and steps need to be taken immediately to unjam the wood to get it flowing again.

[4] The unjamming is usually done by using a “pipe pole” to knock the logs or the lumber loose and get it moving again. Occasionally, the conveyor must be stopped, and, for safety reasons, locked up so that the worker may access the conveyor to manually unjam the wood.

[5] One of the machines the wood passes through is called a “trimmer”. There are two trimmer lines at this sawmill and each has its own operator. The general duties of the trimmer operator are to keep the wood moving straight on the line with a “pipe pole”, to watch for and prevent jam-ups and, when they occur, to take steps to unjam it as quickly as possible, including, when necessary, physically accessing the jam-up after having performed a lock out procedure on the conveyor.

[6] The trimmer’s job is done from a catwalk that runs parallel to the trimmer line. These two catwalks are elevated more than 3 metres above the sawmill floor and are guarded by a guardrail. On the day in question, Terry Nelson was working as the trimmer 2 operator. A jam-up occurred at conveyor 823, which runs perpendicular to and receives some wood from the trimmer lines.

[7] Mr. Nelson stopped the conveyors by effecting a lock up and then accessed a motor guard situated above conveyor 823 by jumping over the guardrail found on the catwalk on the trimmer 2 line, accessing the platform which is the subject of the guardrail charge and going over a beam, a conveyor chain and another metal bar. It was from the motor guard that he fell to the sawmill floor.

GROUNDS OF APPEAL

[8] Tembec argues that the trial judge made two errors of law or of mixed fact and law:

1. by making inconsistent findings on the foreseeability of workers going past the catwalk guardrail; and

2. by concluding that it was foreseeable that workers would go past the catwalk guardrail without evidence capable of supporting that finding.

THE LAW

Standard of Appellate Review

[9] Section 120(1) of the Provincial Offences Act provides that a court may allow an appeal against a conviction when it is of the opinion that the finding should be set aside as unreasonable, unsupported by the evidence or involves a wrong decision on a question of law.

[10] Generally, an appellate court shall not interfere with the factual findings of a trial court unless the appellate court is satisfied that those findings are the product of a “palpable and overriding error”. Similarly, questions of mixed fact and law are subject to a standard of review of palpable and overriding error unless “an erroneous finding of the trial judge can be traced to an error in his or her characterization of the legal standard”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.) at paras. 10-18, 23, 33, and 37.

[11] On these standards, Tembec has the high burden of demonstrating that the trial judge committed a palpable and overriding error on an issue, and, secondly, that the error affected the result: Hickman Motors Ltd. v. Canada, 1997 357 (SCC) at para. 142.

Other Rules Applicable to OHSA Prosecutions

[12] As these are strict liability offenses within the meaning of R v. City of Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299, the Crown needs to establish only the actus reus of the offenses beyond a reasonable doubt. Then the onus shifts to Tembec to establish a defence of due diligence on a balance of probabilities.

[13] Sault Ste. Marie confirms that there are two branches to the due diligence defence:

1. if the accused reasonably believed in a mistaken set of facts which, if true, would render the act of omission innocent; or

2. if he took all reasonable steps to avoid the particular event.

The second branch of this common law defence of due diligence has been codified in s. 66 (3) of the OHSA which states that on prosecution for a failure to comply with s. 25 (1) (c) it shall be a

defence for the accused to prove “that every precaution reasonable in the circumstance was taken”.

Appeal Ground #1: did the trial judge make inconsistent findings on the foreseeability of workers going over the catwalk guardrail?

[14] The ratio decidendi, the point which led to the dismissal of the guarding charge, is not that the trial judge found that it was not foreseeable that workers would access the platform by going over the guardrail but rather her finding that the Crown failed to prove the actus reus beyond a reasonable doubt because:

1. she determined that the piece of metal grating on the other side of the catwalk guardrail was not a “platform” within the meaning of the regulation; and

2. she was not satisfied that there was an “open side.”

[15] When elaborating the reasons which informed her conclusion that the actus reus had not been proven, the trial judge refers to the fact that access to the grating was barred by the catwalk guardrail and would require a worker to overcome the guardrail. These observations do not form part of any foreseeability analysis. Rather they support her view that the actus reus was not proven, given her findings:

1. that “the piece of grating was not a platform, as that term...implies it is to be used as a base from which to work”; and

2. “An open side would necessarily imply that it was readily accessible...without any obstruction.”

[16] There is no discussion, much less a finding, on the guardrail charge as to whether it was foreseeable that a worker would go past the catwalk guardrail to access the grating. Considerations of foreseeability did not play any role in her ruling that the actus reus had not been proven. Tembec’s submission on this issue misses the mark.

[17] The trial judge then went on to consider the due diligence defence. She was satisfied on a balance of probabilities that due diligence had been established because in a short period of time just before the accident Tembec had identified and corrected several hundred deficiencies in the guarding requirements throughout the sawmill: the fact that no correction was deemed necessary at this specific location supports her position that this is not a platform and that there is no open side.

[18] Tembec seeks to extend this finding of due diligence from the guardrail charge to the fall arrest charge. There is no contradiction in a finding that due diligence was established on the guardrail charge but not on the fall arrest charge. The guardrail charge deals with the discrete question of whether a guardrail should be present at a location to which access is already restricted by a guardrail and which the trial judge has found was not a base from which anyone could work. On the other hand, the fall arrest charge involves considerations of worker safety given her finding that it was foreseeable that a trimmer 2 operator would, as often happens in many other locations in the sawmill, need to access conveyor 823 from time to time in order to free up difficult jam-ups from a surface that was more than 3 metres from the floor; in those circumstances, the nature of the due diligence expected of Tembec is different than that required when dealing with an idle platform from which no work is performed.

Appeal Ground #2: did the trial judge err by concluding that it was foreseeable that workers would go past the catwalk guardrail?

[19] The trial judge’s finding that the actus reus on the fall arrest charge was proven beyond a reasonable doubt is not challenged: Terry Nelson was not wearing fall arrest protection when he fell more than 3 metres to the floor. The onus therefore shifts to Tembec to establish a defence of due diligence by proving on a balance of probabilities “that every precaution reasonable in the circumstance was taken.”

The need to access conveyor 823 – direct evidence

[20] Three trimmer 2 operators (Lapalme, Papineau & Nelson) testified that there were instances where it was not possible to clear up a jam-up on conveyor 823 by remaining on the catwalk and using a pipe pole and that in those cases it was necessary to physically access the conveyors in order to clear the jam-up by jumping over the catwalk guardrail. They also testified that they were never told not to physically access the conveyor by crossing the guardrail and that they were not specifically instructed to wear fall arrest protection whenever performing that task; in fact, their evidence is that none of them believed that it was necessary to be trained in fall arrest protection in order to be a trimmer operator.

[21] Wes Larose, a Tembec supervisor, testified that he had never seen a jam-up at conveyor 823 that required a trimmer 2 operator to leave the safety of the catwalk. That evidence was discounted by the trial judge because Larose had been a supervisor at the mill for only a very brief time and therefore only had a limited time in observing the trimmer 2 operators performing their work.

[22] Tembec claims that the three Crown witnesses’ testimony on this point cannot be relied on because the trial judge rejected those witnesses as not being credible. It is true that the trial judge did reject some of their evidence but a fair reading of the judgement reveals that the

rejection is limited specifically as the frequency of workers going over the guardrail and not that it was indeed a practice for trimmer 2 operators to physically access the conveyor during the

unjamming process. She rejected Terry Nelson’s evidence as to the “frequency” of the practice of going over the guardrail in these words:

“Although I do not accept that is happened 2-3 times per shift, I am not prepared to accept the Defendant’s position that it was an isolated, infrequent event.”

[23] The trial judge carefully evaluated the testimony of those impugned witnesses and rejected those portions dealing with frequency. A trier of fact can accept some, all, or none of a witness’ evidence. She rejected their evidence as to frequency, but not as to the practice. In other parts of her judgement the trial judge relies on the testimony of those same witnesses on other issues: for example:

1. when she accepts, with respect to trimmer 2 operators, that “they all indicated that they accessed that area over the guardrail” and

2. when dealing with the training records, she said “The records support the evidence of Nelson, Papineau and Lapalme that fall arrest equipment was not a requirement for the trimmer 2 operator job.”

Knowledge of the need to access conveyor 823 imputed to Tembec

[24] The evidence was that jam-ups occur regularly all over the plant and that there are times when it is necessary to go onto a conveyor to unjam the wood. In those cases, a lock out procedure is performed. Tembec was aware of this need to access conveyors from time to time and even developed a Trimmer Lock Out Procedure. The Procedure applied to all locations in general where it may have become necessary to access a conveyor because of a jam-up. It did not mention that in some instances fall arrest protection was necessary.

Reasonable precautions

[25] The trial judge found that jam-ups at conveyor 823 were identified as a specific problem area: in her words “they were a recognized, repeated occurrence, not an isolated event.” She concluded that there was a need from time to time to access conveyor 823 from the catwalk guardrail and that Tembec ought to have been aware of that need and developed a safe procedure to be followed by the trimmer 2 operator with a fall hazard identified. The evidence does not disclose any reasonable attempt by Tembec to address this issue.

[26] It is true that modifications were made to the conveyor two weeks before the accident but that cannot objectively be interpreted as due diligence on its own, given that jam-ups are known to occur regularly throughout the plant, that no specific training was given to the trimmer 2 operators as to the need for fall arrest equipment at this specific site and that no alternate access to the conveyor was provided. Even after the modifications to the conveyor, in the absence of a ladder or rolling staircase, the quickest, easiest and in fact the only way to access conveyor 823 remained, as on the day of the accident, by coming down from the catwalk.

CONCLUSION

[27] There is no reason to depart from the usual appellate deference to findings of fact and findings of mixed fact and law made by the trial judge. There is no palpable and overriding error. The verdict is one that a trial judge could reasonably render and is supportable by evidence and not tainted by any error of law or of mixed fact and law. The appeal is therefore dismissed.

The Hon. Mr. Justice Robert Riopelle

Released: June 24, 2013