IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 012 Date: March 1, 2017 Information: 90215154 Location: Wakaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kelvin Rowlett Appearing: Buffy L. Rodgers For the Crown Jay Watson For the Accused JUDGMENT J.F. RYBCHUK , J INTRODUCTION

[ 1 ] When the power goes out everyone expects SaskPower to fix it quickly. We do not usually think of the workers who must go out and perform this potentially dangerous work, or of their families and friends who simply want them to return home safe.

This case bids us remember these workers and their safety. [ 2 ] Kelvin Rowlett and Kleon Swahn worked as linemen at SaskPower for over 17 years where the corporate motto is “Safety First.” Both men were working together late in the evening of December 20, 2014 in a remote rural area of north-central Saskatchewan repairing some high voltage transmission lines when Kleon was fatally electrocuted. [ 3 ] An investigation was conducted by Occupational Health and Safety.

Kelvin was charged as his supervisor with failing to ensure the health and safety of Kleon by: Count 1 not following the SaskPower Safety Rule Book procedure to review and revise the job hazard identification and risk assessment if job conditions change; Count 2 not ensuring Class II rubber gloves were used as required by the SaskPower Safety Rule Book; and Count 3 not ensuring a jumper cable was used prior to the cutting of the energized shield wire resulting in Kleon’s death, contrary to subsections 3-9(

a) and 3-78(

g) of The Saskatchewan Employment Act. [ 4 ] A trial was held on November 21, 2016. An Agreed Statement of Facts was entered into evidence and the Crown called two witnesses, Aaron Eckel and Aaron Gratton. Both men are journeyman power line technicians employed by SaskPower and were fellow crew members on the night in question. The defence also called one witness, Kelvin Rowlett. Mr. Rowlett is also a journeyman power line technician employed by SaskPower for 25 years. He has spent the last eight years as a supervisor.

ISSUES [ 5 ] Counts #1 and #3 are related so I have re-ordered them such that the issues in this decision are whether Mr. Rowlett failed to ensure the safety of workers under his supervision by: 1. Failing to follow the SaskPower Safety Rule Book procedure to review and revise the job hazard identification and risk assessment when the job conditions changed? 2. Failing to ensure a jumper cable was used prior to the cutting of the shield wire? 3. Failing to ensure Class II rubber gloves were used as required by the SaskPower Safety Rule Book? FACTS

[ 6 ] The break in the shield wire occurred between two structures (or towers) numbered 189 and 190, but closer to tower 189, along some 230 KV transmission lines located just south of Wakaw, SK. The shorter loose end from tower 189 was hanging in the air while the longer loose end from tower 190 was lying on top of the still intact overhead power lines between the towers. [ 7 ] The four crew members, Mr. Rowlett, Mr. Swahn, Mr. Gratton and Mr. Eckel, got together to discuss the job plan and hazards associated with repairing the broken shield wire. Mr.

Rowlett documented this tailboard meeting on a T&D Hazard & Risk Assessment Form [Form] which was signed by all four crew members. [ 8 ] The original job plan was simply to rejoin the ends of the broken wire. To carry this out a detailed plan requiring many steps was itemized on page 2 of the Form as follows:

i) obtain standoff and isolation permits; ii) park and ground the truck; iii) ground the broken end of the shield wire at structure 189; iv) ground the power lines at structure 189;

v) prep the shield wire at structure 189 with a shive; vi) pull the other broken end of the shield wire off the power lines at structure 190 to the ground; vii) pull the shield wire with shotgun and ground; viii) pull a rope through the shive at 189; ix) attach the rope mid-span with a grip;

x) hook the rope up to the truck winch; xi) pull the rope until the ends touch; xii) add ground from #2 phase to shield wire; and xiii) jumper across. There were a number of hazards identified with this job on the Form. The major job hazard was induction which was to be avoided by good grounding. [ 9 ] At trial, the workers summarized this plan as using a shive, rope, pulley and truck to pull the broken ends of the shield wire close together. They would then use a bucket truck to pull the broken ends up above the other intact power lines, attach a jumper cable to the ends and splice them together.

This plan would not have involved any cutting of shield wire unless there was a frayed end. [ 10 ] However, during the course of carrying out the work it became apparent the job could not be performed in the manner originally planned because the bucket truck could not reach high enough to rejoin the shield wires above the power lines where the break had occurred. As a result, a new plan with new job steps and sequencing of tasks was required. The bucket truck now had to be moved to a hill between the two towers where the power lines sagged low enough that the bucket could reach above them.

Additional work now also had to be performed to the shield wire while on the ground and before the work in the air could be performed as contemplated in the original plan. [ 11 ] New shield wire would have to be cut and added to the shorter end of the broken shield wire from tower 189.

The longer end of the broken shield wire from tower 190 would have to be cut and removed so that wires could be joined at the new location where the bucket truck could reach above the power lines. [ 12 ] The crew members got together again and had a second tailboard meeting where they went over and discussed the changes to the plan in general. They did not pull out the Form and discuss or document the changes to the plan in detail in this second meeting.

[ 13 ] Following the meeting, Mr. Swahn measured the distance from the original location to the new location where the bucket truck could reach high enough. The difference was approximately 45 paces. The bucket truck was then moved to that new location and grounded. They cut off approximately 45 feet of new shield wire from a spool to splice onto the shorter end of shield wire from tower 189. But before the splicing was done, a jumper cable was put on the broken shield wire from tower 189, even though the splicing would take place outside the grounding that had been done from the wire to the metal tower 189.

None of these steps were discussed in detail or documented. [ 14 ] Mr. Swahn then measured out 45 paces to be cut from the longer broken end of the shield wire from tower 190 which by then had been grounded with probes and pulled down to the ground from the overhead power lines. He indicated with his foot where the new cut would have to be made which ended up being inside the ground probes from the shield wire. This meant the wire could still be conducting energy and a jumper cable had to be attached to it first before a cut could safely be made.

Unfortunately, none of these steps were discussed in detail or documented either. [ 15 ] Mr. Swahn picked up the shield wire from tower 190 with both of his hands. Mr. Rowlett taped the shield wire where the cut was to be made. Mr. Gratton cut the shield wire seconds later without a jumper cable being placed on it first. Mr. Swahn was put in series with the electrical current flowing on the line and died from electrocution. THE LAW Legislation [ 16 ] The Saskatchewan Employment Act,

Part III Occupation Health and Safety [ Act ] replaced The Occupational Health and Safety Act, 1993 on April 29, 2014 and is the applicable legislation here. The relevant provisions of the Act are as follows: 3-1(1) (o) “occupational health and safety” means: (

i) the promotion and maintenance of the highest degree of physical, mental and social well-being of workers; (ii) the prevention among workers of ill health caused by their working conditions; (iii) the protection of workers in their employment from factors adverse to their health; (iv) the placing and maintenance of workers in working environments that are adapted to their individual physiological and psychological conditions; . . . (x) “practicable” means possible given current knowledge, technology and invention; . . . (z) “reasonably practicable” means practicable unless the person on whom a duty is placed can show there is a gross disproportion between the benefit of the duty and the cost, in time, trouble and money, of the measures to secure the duty;

. . . (dd) “supervisor” means an individual who is authorized by an employer to oversee or direct the work of theemployer’s worker; 3-9 Every supervisor shall: (

a) ensure, insofar as is reasonably practicable, the health and safety at work of all workers who are under thesupervisor’s direct supervision and direction; 3-78 No person shall: . . . (

g) fail to comply with any provision of this Part or any provision of the regulations made pursuant to this Part. 3-80 In any proceedings for an offence pursuant to this Part or the regulations made pursuant to this Part respecting a failure to complywith a duty or requirement to do something so far as is practicable or so far as is reasonably practicable or to use the best practicablemeans to do something, the onus is on the accused to prove, as the case may be, that: (

a) it was not practicable or not reasonably practicable to do more than was actually done to satisfy the duty orrequirement; or (

b) there was no better practicable means than was actually used to satisfy the duty or requirement. Case law [17] The objective of the legislation is the promotion of workplace safety. In R v Reimer, 2012 SKPC 6 , 2012 SKPC 06[Reimer] Judge Morgan considered the former The Occupation and Safety Act, 1993 legislation and stated at paras. 72-73: [72] This is a statute designed primarily to protect the “health, safety, and welfare at work of all of the employer’s workers” (see s. 3(a)of the Act).

Crown counsel suggests in his brief, and I agree, that the Act is essentially a “public welfare statute designed to promote thepublic health and safety of the province’s workers and is intended to guarantee a minimum level of protection to these workers”. Thedefinition of “occupational health and safety” contained in s. 2(1)(

b) of the Act includes among others “the promotion and maintenanceof the highest degrees of physical, mental and social well-being of workers (

i) and the protection of workers in their employment fromfactors adverse to their health”. (See also Claude Resources Inc. v. Thompson, 2005 SKQB 403 , 271 Sask. R. 49, para. 23.)

[73] A number of cases from this Court have dealt with the purpose of the Act. R v. Task Construction Management, an oral decision ofJudge Koskie dated April 20, 2007, noted that the “scheme of the Act is to protect the worker” (page 9, line 18), holding as well that theobligations imposed under the Act are joint and several, that is obligations can overlap. This principle of overlapping responsibility isexplored by Justice Hrabinsky in R. v. Jastek Master Builder 2004 Inc., 2006 SKQB 223 , 278 Sask.

R. 312, at paragraphs 14and 15. [18] Judge Morgan goes on in Reimer to state at para. 77: [77] In interpreting the Act, and in keeping with the “general remedial theme of regulatory legislation of this nature . . . the legislationmust be broadly interpreted to ensure a minimal level of protection for all workers”, as stated by Judge Harradence at paragraph 33 of Rv. 101009484 Saskatchewan Ltd. (Robwel Constructors Limited Partnership), 2011 SKPC 31 , relying on R v. TaskConstruction Management, supra. [19] Subsection 3-78(

g) of the Act sets out an occupational health and safety offence which is a form of strict liability offence. Assuch, the onus is on the Crown to prove the actus reus of the offence, the doing of the prohibited act, beyond a reasonable doubt, whenthe burden then shifts to the accused to establish on a balance of probabilities the defence of due diligence, that he took all reasonablesteps to prevent the prohibited act from occurring. As Dickson, J. stated in R v Sault Ste. Marie (City), (SCC), [1978] 2SCR 1299 [Sault Ste.

Marie] at p. 1325: While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must onlyestablish on the balance of probabilities that he has a defence of reasonable care. And further at p. 1326: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facieimports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances.

The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. [20] As Judge Morgan observed in Reimer when considering the former s. 62 of The Occupational Health and Safety Act, 1993 atpara. 115: [115] . . . the wording of s. 62, as found by Mr. Justice Ball in Rosin, is the proper approach to take (see paragraph 30 CanLII).

That is,having determined that the Crown has established the elements of the offence beyond a reasonable doubt, in assessing due diligence, thequestion is “whether the accused had shown on a balance of probabilities that it was not practicable or not reasonably practicable to domore than was actually done to satisfy the duty imposed by The Occupational Health and Safety Act, 1993”. [21] A company’s safety rule book can provide compelling but not necessarily conclusive evidence of either the actus reus of theoffence or the defence of due diligence to a charge of failure to ensure the health and safety of workers under the Act.

ANALYSIS

1. Failing to follow the SaskPower Safety Rule Book procedure to review and revise the job hazard identification and risk assessment when the job conditions changed? Actus Reus [ 22 ] SaskPower has a Safety Rule Book [Rule Book] that was entered into evidence as Exhibit P-1 at trial. All witnesses testified to the importance of the Rule Book and that compliance with it is a condition of their employment. Each received training on the Rule Book, was provided with a copy of it and had access to it from their employee home page.

They all signed a SaskPower Safety Rule Book Receipt which read: I hereby acknowledge receipt of the SaskPower Safety Rule Book. I understand that it is my responsibility to become familiar with the safety rules and regulations specific to my work, as outlined in this Rule Book. [ 23 ] The Receipt goes on to state the purpose of the Rule Book: This Safety Rule Book provides rules, guidelines and direction to ensure that workers and supervisors are equipped to make sound safety decisions in their day-to-day work activities.

It is also an important guide to the hazard and risk assessment and work observation elements of our safety program. [ 24 ]

Section 0 of the Rule Book sets out the

definitions relevant to this case: Hazard : Source or situation with the potential of harm in terms of injury or ill health, damage to property, damage to work place environment, or a combination of these. Hazard analysis: A systematic evaluation of a condition or practice with a potential for loss. Incident: An event that could or does result in unintended harm or damage. Injury: An instance of physical harm or damage to a person. Risk: A combination of the likelihood and consequence(

s) of a specified hazardous event occurring. Risk Assessment: The process of estimating the magnitude of risk and deciding whether or not the risk is tolerable. Safety: Freedom from unacceptable risk or harm. Shall: To be required or compelled to do. Indicating insistence. Supervisor: A person who is authorized by an employer to oversee or direct the work of workers.

Tailboard Meeting: A meeting conducted at the job site by the workers to assess the adequacy of the job plan, and to ensure that all hazards are identified and mitigated. [ 25 ]

Section 1 of the Rule Book sets out the General Responsibilities for Safety and Supervisors’ Responsibilities. [ 26 ]

Section 2 covers General Workplace Safety and General Hazard Control .

Section 201 specifically states: .1 It is a SaskPower Policy that all tasks, assignment and circumstances are assessed to identify hazards and that reasonably practicable measures shall be taken to eliminate, reduce or control those risks. .2 Methods and frequency of hazard identification at the facility and job specific level shall be defined in Registration Unit procedures for hazard and risk assessment.

Workers shall follow their Registration Unit’s procedures. .3 A documented tailboard/safety plan shall be conducted when more than one worker is performing a job. .4 All workers shall be included in the hazard identification and risk assessment. The supervisor shall review the job hazard identification and risk assessment with any workers not present at the original meeting. If job conditions change, the job hazard identification and risk assessment shall be reviewed and revised as required. .5 Safe work procedures shall be developed for critical tasks. [ 27 ]

Section 11 of the Rule Book deals with T&D Construction Maintenance and Operating . “T&D” stands for the Transmission and Distribution units of SaskPower.

Section 1100 reinforces the importance of the requirements contained in

Section 201 by specifically stating: .1 A job hazard analysis or risk assessment shall be conducted before commencing any job. .2 A documented job hazard analysis shall be conducted when more than one worker is performing a job. .3 All workers shall be included in the hazard identification and risk assessment. The supervisor shall review the job hazard identification and risk assessment with any workers not present at the original meeting.

If job conditions change, the job hazard identification and risk assessment shall be reviewed and revised as required. [ 28 ] Everyone agrees that the job conditions changed that night when the workers discovered the bucket truck could not reach the required height. It is also not disputed that the crew members did not physically review and revise the T&D Hazard & Risk Assessment Form during the second tailboard meeting when they discussed the overall changes to the job plan and hazards associated with it. What is disputed is exactly what was discussed in that second meeting as it was not documented. [ 29 ] Mr.

Rowlett argues that all the Rule Book requires is that they verbally review and revise the job hazard identification and risk assessment. Further, that it was not necessary for him to have the T&D Hazard & Risk Assessment Form physically present when doing this or that he document the changes to it in writing because the Rulebook does not expressly or strictly state this anywhere. These arguments cannot succeed for the following reasons.

[ 30 ] There were varying accounts at trial of exactly what changes to the job steps and risks were discussed at the second tailboard meeting that formed part of their new plan. But what is clear is that none of the witnesses articulated all the steps, especially the new cut that would have to be made to the downed shield wire from tower 190. This cut would take place inside the ground probes and therefore necessitate that a jumper cable be placed on it first.

They may have discussed the changes to the job plan in general, but they never discussed this new cut and the jumpering of it in particular, at the second meeting or any time following it when carrying out the work leading up to the actual cut taking place. [ 31 ] The original job plan at the first meeting did not involve any cutting of wire. The new revised job plan at the second meeting did involve the cutting of wire. [ 32 ] The witnesses were all asked on the stand what exactly was discussed in the second meeting. I found Mr. Gratton’s testimony to be the most candid and credible.

He admitted that he did not think and they did not talk about cutting the shield wire on the ground and they missed discussing the jumpering of it entirely, stating at p. 65, line 35 of the trial transcript [TT]: Q Okay. And so what – did – did you guys go step-by-step through the – the plan like you had in the original – A Yeah. Q – assessment? A I do remember, like talking – we were talking about how we were going to have to add a piece on and then we were going to pull it up.

It was – to me it was the same as what the original one – what I had pictured in my head, we were doing the same, except for it was going to be with a new piece, just in a different spot. [ 33 ] And further on p. 73, line 38: Q Okay. Was there any discussion about a jumper in the moments leading up to the cutting of the shield wire? A I don’t remember that. I know we had talked about when it was – once we got it in the air and with the bucket truck we would put a jumper but, I – I think we missed that part, like I – Q Okay. Why – why do you think you missed that part?

A ‘Cause we just – we didn’t do it, like I – I don’t remember having – talking or thinking about it, I – I should have been. Q Okay. So when you were – you just described talking about the jumper when it was in the air; is that the initial plan – was that the initial plan? A Yeah. And then – Q Okay.

A – the second plan of – like, once we got – it was the same, that we would still jumper it in the air. It – it was part of the plan for that. Q Okay. Okay. A To – to jumper those two separate pieces, but I don’t remember thinking about jumpering this long piece whenever we cut it. I don’t know if it was because it was dark, I just didn’t think of where the probes were in relation to where we were cutting it. [ 34 ] According to Mr. Gratton the location of the ground probes was important and he had forgotten where they were located.

He was asked about this in the TT p. 74, line 24: Q What – why were – so why were you not thinking about the probes? What was – what would the significance of the probes be? A Well, if I would have thought about where they were, I would have known, like, that you put a jumper, ‘cause I would have realized that the electricity was flowing through that part of the wire. Q Okay. Was there any discussion about where the probes were located when you were talking about the second plan? A I don’t remember, no, I don’t. I – not that I know of. [ 35 ] Mr.

Eckel also said nothing in particular about cutting the downed shield wire from structure 190 and having to jumper it first because of the hazard of induction that created. His testimony about the second plan starts at p. 27, line 6 of the TT: Q Okay. Can you – do you recall step by step what the new plan was? A The plan was that we would move the truck, but first we were going to pace off a certain amount and I believe Kleon paced that off. I was kind of working with him at that time. And he came to 45 paces, was the – was the number he kind of came up with. So we did that.

And by that time we got to structure 189, Kelvin was – had the shield wire out and we were starting to pace it off. [ 36 ] And further at p. 28, line 5: Q Was there any discussion about major hazards associated with the new plan? A Not new, but the conversation, when we had the – the verbal discussion was we would continue to jumper it and once we got it up, before our final connection and before we went to jack it up. Q Okay. Was there any discussion about required barriers for the new plan?

A Pardon me. I don’t – not that much had changed as far as it was just the bucket was going to be in a different spot and once we got tension on it and had it up to a desired height, I guess, we – like I said we would jumper it and install our jacks and grips to – to sleeve it – or splice it. Q Okay. So tell – tell the Court a bit about this discussion to jumper it up, who said it would be jumpered up? A Kelvin. Q And what exactly did he say? A Well, he said it at the initial tailboard, as far as anytime we were closing in a connection we would jumper it. Q Okay. So that was at the initial tailboard meeting?

A Yeah. And it was – revisited at – when we – when we went to change the plan. Q Okay. Can you just describe exactly how it was revisited? A The comment was just made that once we got it up, like I said, to a desired height we would put our – our jumper on and – [ 37 ] And further at p. 35, line 12: Q Okay. And in – in this situation on December 20th, did the job conditions change? A Yes. Q Alright. And was the job hazard identification and risk assessment reviewed and revised? A We went over it verbally, but not that I can remember. [ 38 ] In cross-examination Mr.

Eckel testified at p. 43, line 24: Q And you did, in fact, do that? You again got together once you realized that you had to splice some wire onto the 189 end of the shield wire and take some off the 190 end, you had another meeting to decide how you were going to do that; correct? A Yes. Q Okay. And the risks were – the hazards were explained and the procedure was explained?

A Yes. Q Okay. Now, I think my friend asked you if it was documented, but you’ll agree with me that sub 4 doesn’t refer to anything about being documented, it just says a – “If job conditions change, the job hazard identification and risk assessment shall be reviewed and revised”? A Yes. Q And that was done? A Mmhmm. Q That’s a “yes”? A That’s correct, yes. Q Okay. And after that – after that second meeting, did anybody have any questions that you recall? A Not that I can think of, no.

It was discussed, like – like how you brought up, as far as jumpering and – and that kind of stuff came up to play on, not that I can think of, no. [ 39 ] So Mr. Eckel’s evidence was that they only discussed the requirement of jumpering in general whenever they had two lines in the air and were closing the connection from the bucket truck as part of the original plan. He was never asked, and did not detail in his testimony, the exact procedures and hazards that were explained in the second meeting.

This included in particular the new task of having to cut the shield wire on the ground beforehand or the hazards associated with that new job task. This was critical because the cut was to take place within the ground probes and would therefore require its own jumper cable also be installed beforehand to protect against the risk of induction energy on it. [ 40 ] There was also confusion expressed by both Mr. Eckel and Mr.

Gratton during their testimony as to whether the other broken end of the shield wire from tower 189 also had to be jumpered even though the splicing of it was to occur outside the ground to the metal tower, and whether in fact, it was jumpered by Mr. Rowlett when they spliced the new shield wire onto it. This supports my finding of fact that the jumpering and cutting of the other longer end of the shield wire from tower 190 was not discussed or reviewed by the crew members either. [ 41 ] Even Mr.

Rowlett was not certain in his testimony that they specifically discussed in the second tailboard meeting this new, additional step of having to cut the shield wire from structure 190 and jumper it first. He only made vague statements that he ‘believed’ they had discussed ‘jumpering’ in general. He stated at TT p. 117, line 1: A Okay. So the second discussion revolved around moving the bucket to the new location and also having to splice wire on and remove wire off. We had that discussion, it would have took (sic) a few minutes and proceeded back to work. Q Did you talk about jumpering? A Yes, I believe so, yes.

[ 42 ] And further at p. 119, line 40: Q Do you believe that you adequately dealt with and explained all hazards to the crew once there was a change that needed to be made in terms of splicing extra wire off one end and – taking some off the other? A I believe I did, yes. Q Do you believe you properly explained – explained the issues and necessity for jumpering? A Yes, I believe I did, yeah. [ 43 ] In cross-examination he stated even more uncertainly, and again with no reference to the ground work, at p. 125, line 12: Q Okay. So just tell the Court exactly about that. What exactly did you say to your workers?

A When – when we stopped to discuss moving the bucket – Q Mmhmm. A – that everybody was aware of what was going on and that everybody agreed to it and knew what was going on. Q Well, what did you say to them? A I don’t – I’m not sure what you are asking me exactly. Q Did you just – you’re – you’re telling the Court that you told them, you know, asked if everybody knew what was going on, what exactly did you say to them? A That we were moving the bucket truck from one location to the other – Q Mmhmm. A – because of the splicing. Q Okay. A ‘Cause we couldn’t reach it.

Q Okay. A And that we’re moving the bucket from point ‘A’ where it was to point ‘B’ and is – is everybody – does everybody know that, does everybody understand that? ‘Cause that’s what we’re going to do. Q Mmhmm. A Does everybody understand? Q Right. A And they say, yes. [ 44 ] These generalized statements by Mr. Rowlett that he believes he mentioned jumpering as part of the second job plan conflicts with Mr. Gratton’s and Mr.

Eckel’s testimony that jumpering was only discussed in relation to the original plan remaining the same except that the location where the two wires would be joined would move to a new location and that the connection would still be jumpered in the air when they had both ends of the shield wire up in the bucket truck. I accept the evidence of Mr. Gratton and Mr. Eckel over Mr.

Rowlett on this matter of fact for the following reasons. [ 45 ] SaskPower requires these tailboard meetings and risk management plans be documented in order to avoid any confusion or conflict over the steps to be taken to manage work risks. These matters are documented in writing for purposes of protection and so there can be no dispute down the road as to what was discussed or not discussed. The fact Mr. Rowlett chose not to document this meeting affects his credibility and version of events at the second meeting. [ 46 ] I found Mr.

Rowlett to be not entirely credible in his attempts to distance himself from the incident, minimize his involvement and not take responsibility for his actions and inactions. For example, he initially testified he could not remember who taped the shield wire mere seconds before it was cut and Mr. Swahn was electrocuted, but then when confronted with his police statement in cross- examination, he admitted the inconsistency and that he was in fact the one who had taped it. [ 47 ] Mr. Rowlett was also evasive and refused to adopt in full various statements he had made to the police following the incident.

For example, he denied in cross-examination that it was “weighing on him” at all that he couldn’t get anybody with “any experience” or that this was even a concern to him at the time of the accident as he had told the police. [ 48 ] Mr. Rowlett was also adamant that he would never need to tell workers to jumper a line first before cutting it. This may be “linemen 101” and there may be plenty of work situations where the risk is self-evident and workers should not need to be reminded of it. But people can, and sometimes do, still forget.

That is the reason why all tasks need to be assessed to identify the risks (see Rule Book

section 201.1), especially where the risk is between the life and death of a worker. That is the whole reason SaskPower has a Safety Rule Book with all these risk management policies and procedures in the first place. He was there doing the work with them but not clearly directing and supervising them to manage the work risks. [ 49 ] Mr. Rowlett also attempted to give a very broad definition of the last job step contained on the T&D Hazard and Risk Assessment Form to mean that anytime they were connecting or disconnecting or cutting or splicing a wire, that they would have to jumper it.

However, I also disbelieve his testimony on this point because firstly, the job step on the Form was actually described as “jumper across” not the general word “jumpering” that he was asked by his counsel in examination-in-chief. [ 50 ] Secondly, “jumper across” was the last job step itemized in the original plan from the first tailboard meeting and clearly referred only to the situation where they had the shield wire up in the air and not when they were on the ground cutting the wire. This

was the evidence of both Mr. Eckel and Mr. Gratton and even Mr. Rowlett somewhat acknowledged this in cross-examination. [ 51 ] There was nothing in all of their testimony about having to install a jumper cable on the ground when cutting a piece off the broken end of the old shield wire from tower 190. They all forgot to discuss the necessity of installing a jumper cable before the cut was made, and that included Mr. Rowlett. Mr.

Rowlett did not conduct a methodical and thorough enough discussion of all the steps involved in the revised work plan to identify and mitigate all hazards and ensure the safety of his workers. [ 52 ] I therefore find that the Mr. Rowlett did not actually review and revise the job hazard identification and risk assessment when the job conditions changed and in doing so, failed to follow the SaskPower Safety Rule Book procedures.

He failed to take the necessary time to review and update the job steps from the original plan once he determined that the bucket truck was too short to do the job set out in the original plan. New tasks were added to the original plan as well as a change to the sequence of tasks. The particular task of cutting old shield wire and adding new shield wire while on the ground brought with it the added risk of cutting wire with a current on it and putting a worker in series if not safeguarded by a properly installed jumper cable beforehand. This is what ended up happening to Mr. Kleon. [ 53 ] Even if Mr.

Rowlett had conducted a proper, methodical and thorough enough verbal review and revision of the job hazard identification and risk assessment, he still failed to follow the Rule Book procedure by not having the actual T&D Hazard & Risk Assessment Form physically present and not documenting the changes to it in writing. [ 54 ] It is clear from ss. 201.1, 201.3, 1100.1 and 1100.2 of the SaskPower Safety Rule Book that Mr. Rowlett was required to conduct and document a tailboard meeting and job hazard analysis safety plan before commencing the job that night.

This was done and documented on the T&D Hazard & Risk Assessment Form filed as Exhibit P-3 at trial. The question is whether when the job conditions changed and Mr.

Rowlett conducted a second tailboard meeting, he was also required to further review and revise this Form and document the changes to it. [ 55 ] The Form states at the top of page 1: PREPARE, DISCUSS AND REVIEW THE JOB PLAN WITH THE CREW DAILY AND WHENEVER A CHANGE IS INTRODUCED TO THE JOB [ 56 ] The Form emphasizes the importance of taking all of these above-noted steps whenever there is a change to the job being done. [ 57 ] Page 2 of the Form also clearly contemplates revisiting the Form if job conditions change.

The Form asks halfway down the second page: Did Conditions CHANGE? □ Yes □ No Changes to consider: Weather Conditions/Person in Charge/ Sequence of Tasks/New People on site, etc. Does EVERYONE know? □ Yes □ No

[ 58 ] The Form clearly requires that the boxes be checked either yes or no. None of these boxes were ever checked off by Mr. Rowlett even though the job conditions did change. [ 59 ] Mr. Rowlett’s argument that ss. 201.4 and 1100.3 of the Rule Book do not expressly or specifically require him to physically review and document any changes to the Form ignores the directive at the top of page 1 and the question and answer boxes on page 2 of the Form drawing particular attention to changes to the Form and communication with workers.

It also ignores ss. 201.3 and 1100.2 of the Safety Rule Book which require that a “documented tailboard/safety plan” and a “documented job hazard analysis” shall be conducted when more than one worker is performing a job. [ 60 ] Both sections 201 and 1100 of the Rule Book reference the need to document meetings and the risk management process. Further, the question and answer boxes on page 2 and the direction on the top of page 1 of the Form reference the need to physically review and document any changes to the Form and were put in place to ensure worker safety. In this case, Mr.

Rowlett failed to take those steps or articulate a reasonable explanation as to why he did not follow through with further physical review and documentation. [ 61 ] The evidence in this case indicates that the job steps, tasks and risks changed in nature, sequence and scope requiring strict compliance with the Rule Book and Form. None of the changes in job steps or risks were listed on the Form or on a new Form as part of the second tailboard meeting when changes to the job plan were discussed. [ 62 ] Mr.

Rowlett had already gone through the work of preparing a Form identifying the hazard and risk assessment for this particular job. Subsections 201.4 and 1100.3 of the Rule Book require that when the job changed the job hazard identification and risk assessment “shall be reviewed and revised as required”. The ordinary grammatical meaning of these words in the context of this case requires that the Form be reviewed again and revised in writing to reflect the changes. This is in keeping with the purpose of the Act and a broad

interpretation to guarantee a certain minimum level of protection for all workers. The new steps or tasks leading up to the incident, including in particular the jumpering and cutting of the downed shield wire, were not discussed or documented in writing on the Form or a new T&D Hazard & Risk Assessment Form. Had they been, this tragedy could have been averted. [ 63 ] I therefore find that Mr.

Rowlett was required by the SaskPower Safety Rule Book procedure to go get and review the T&D Hazard & Risk Assessment Form at the second tailboard meeting when discussing changes to the job plan and risk hazard identification and mitigation measures. He was also required to make those revisions to the Form in writing or on a new T&D Hazard & Risk Assessment Form in order to comply with those procedures. [ 64 ] In all the circumstances I have no hesitation concluding that the Crown has proven beyond a reasonable doubt the actus reus of the offence that Mr.

Rowlett failed to ensure the health and safety of his workers by failing to follow the SaskPower Safety Rule Book procedures to review and revise the job hazard identification and risk assessment when the job conditions changed. [ 65 ] In coming to this conclusion I have taken no account of SaskPower’s disciplinary letter entered into evidence at trial by Mr.

Rowlett as a full Exhibit D-1 that found him to be in dereliction of his duties by putting workers at risk and required him to clearly communicate and document changes to job plans when conducting future risk hazards assessments and analyses. [ 66 ] I have considered all of Mr. Rowlett’s testimony, both that which I accept and that which I do not accept, in the totality of all the Crown evidence in this case. It still does not leave a reasonable doubt in my mind as to the actus reus of this offence. The Crown and defence evidence I do accept is more than enough to establish beyond a reasonable doubt that Mr.

Rowlett committed the actus reus of this offence. Due Diligence [ 67 ] Mr. Rowlett argues that he reasonably believed he was not required to physically present and review the initial T&D Hazard & Risk Assessment Form or document the change to it as it was only a “minor” change involving a change in location of the work from point “A” to point “B”. However, there is no such qualification contained in the Rule Book or on the Form that a change must somehow be more than “minor” for a hazard and risk assessment to be revisited and revised. To the contrary, the wording contained in the

definitions sections 0 and 201.1 suggests that “all” tasks, assignments, circumstances and hazards (i.e. changes), be they large or small, are to be assessed and identified so that reasonably practicable measures are taken to eliminate, reduce or control those risks. And further, ss. 201.4 and 1100.3 of the Rule Book and the notes at the top of page 1 of the Form make clear that “if” and “whenever” any

change is introduced to the job conditions, a job hazard identification and risk assessment shall be reviewed and revised again as required. [ 68 ] The change here also was not “minor” in nature as it involved a whole new significant task of cutting shield wire on the ground which brought with it its own separate risks of induction and required mitigation measures to prevent injury or death by installing a jumper cable beforehand. It was the failure of this task that resulted in the electrocution of Kleon Swahn. [ 69 ] Mr.

Rowlett’s whole theory that all the hazards and risks of induction were still the same under the second plan, with the only difference being they were doing the task at point “B” instead of point “A”, ignores the significant risk that was introduced with the task of cutting an old piece of shield wire and replacing it with new shield wire within the grounding. Accordingly, Mr. Rowlett had no basis for a reasonable belief that reviewing the physical Form was not required.

In fact, because he unilaterally chose to impose his own standard of only documenting changes that were “drastic, significant and critical” demonstrates that he failed to comply with the directives set out in the Rule Book, and that what he was doing was not an accepted work practice at SaskPower. The Rule Book negates his argument that he was operating under a reasonable mistaken belief in fact. [ 70 ] Mr. Rowlett did not adduce any evidence that there was no better practicable means than was actually used to satisfy the duty or requirement to ensure the safety of his workers.

He also did not adduce any evidence of a gross disproportion between the cost, in time, trouble and money, for him to simply go and retrieve the physical T&D Hazard & Risk Assessment Form from the truck and have it with him in order to fully review and revise the job hazard and steps in writing to specifically include the new ground shield wire cut and jumper, and the corresponding benefit of saving the life of a worker when carrying out those measures and implementing the necessary risk management barriers.

As such, he has not demonstrated to me on a balance of probabilities that it was not practicable or not reasonably practicable for him to take these steps and do more than he had actually done to satisfy his duty or requirement of safety towards the workers he was supervising, and the defence of due diligence fails. 2. Failing to ensure a jumper cable was used prior to the cutting of the shield wire? Due Diligence [ 71 ] Mr. Rowlett concedes the actus reus of this offence has been proven by the Crown beyond a reasonable doubt. This leaves only the issue of whether Mr.

Rowlett has proven on a balance of probabilities that he was duly diligent and therefore not guilty of this offence. [ 72 ] Mr. Rowlett was responsible for ensuring the safety of Mr. Swahn not only in his capacity as supervisor, but also because he was directly involved in the failure to install the jumper cable prior to the cutting of the shield wire. The Act and The Occupational Health and Safety Regulations, 1996 impose duties of responsibility for the safety of workers on supervisors as well as on employers, contractors, other workers and the like.

These duties overlap in an attempt to ensure safety. [ 73 ] In the Ontario (Ministry of Labour) v Enbridge Gas Distribution Inc. , 2010 ONSC 2013 Bellamy J. stated at para. 24: [24] The OHSA strives to make every party, every employer, and every individual in the workplace responsible in some measure for health and safety. Accidents can and do happen. However, they do not always happen simply because of one incident. They can happen because of several incidents or omissions, as the appellants contend was the case here.

The responsibilities under the Act overlap, creating redundancy which operates to the advantage of workers. The parties in this appeal describe this as the “belt and braces” approach to occupational health and safety, which means the Act and Regulations use more than one method to ensure workers are protected. So, if the “belt” does not work to safeguard a worker, the backup system of the “braces” might, or vice versa.

If all workplace parties are required to exercise due diligence, the failure of one party to exercise the requisite due diligence might be compensated for by the diligence of one of the other workplace parties. The purpose is to leave little to chance and to make protection of workers an overlapping responsibility.

[ 74 ] Various workers can have an overlapping responsibility for a duty of safety in the workplace, but a worker can also have various overlapping responsibilities for a duty of safety in the workplace too. In this case for example, there were overlapping responsibilities in the planning and performance of the job. If diligence in the planning of the job was deficient, it could have been compensated for by diligence in the performance of the job. [ 75 ] Mr. Rowlett attempted to distance himself from the performance of the job as previously mentioned under Issue #1. However, this simply is not possible.

This is not a situation where Mr. Rowlett was off doing one thing on his own while the workers were off doing another thing on their own completely different from what they had been instructed to do. [ 76 ] Mr. Rowlett played a direct role in the accident when he wrapped the shield wire with tape only seconds before it was cut. These were not acts by Mr. Swahn or Mr. Gratton independent of Mr. Rowlett. Mr. Rowlett cannot extract himself from this situation as he played an active role and was the “directing mind” in the work being performed. Dickson J. stated in Sault Ste.

Marie at p. 1331: One comment on the defence of reasonable care in this context should be added. Since the issue is whether the defendant is guilty of an offence the doctrine of respondeat superior has no application. The due diligence which must be established is that of the accused alone. Where an employer is charged in respect of

an act committed by an employee acting in the course of employment, the question will be whether the act took place without the accused’s direction or approval, thus negating wilful involvement of the accused, and whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system.

The availability of the defence to a corporation will depend on whether such due diligence was taken by those who are the directing mind and will of the corporation, whose acts are therefore in law the acts of the corporation itself. For a useful discussion of this matter in the context of a statutory defence of due diligence see Tesco Supermarkets v. Nattras 63 . [ 77 ] While this passage refers to corporations, it also applies to supervisors. In this case, the act took place with Mr. Rowlett’s direction and approval.

He actively participated in steps leading up to the cut, but did not take reasonable and practicable steps beforehand to actually discuss the cut and hazards associated with it in the second tailboard meeting. Nor did he communicate in the events leading up to the cut that it should not be made until after the jumper cable was installed or that he was going to get a jumper cable before the cut was made. Mr. Gratton testified that he did not learn that Mr. Rowlett was going to get a jumper cable until well after the accident had occurred. [ 78 ] The question then becomes whether Mr.

Rowlett took reasonable steps to avoid the offence. In my respectful opinion, he had to do something more than assume the shield wire would not be cut without a jumper cable being installed first because of the basic training everyone received at SaskPower. He was obligated to take steps to ensure that the wire was not cut before he installed the jumper.

This could, and should, have been specifically discussed earlier as part of the job hazard identification and risk assessment plan or when carrying out the work, but it was not. [ 79 ] His evidence was that after taping the shield wire indicating where it was to be cut he went to get a jumper cable. He had taken responsibility for ensuring the jumper cable would be installed. But, he did not verbalize that he was going to get a jumper cable, nor did he verbalize any direction to wait until after he returned with a jumper cable, despite the fact that:

i) he had just taped the shield wire where it was to be cut; ii) Mr. Swahn was holding the wire up with both of his hands; iii) there was discussion of cutting the wire on the tape; iv) Mr. Gratton was in possession of cutters; and

v) a cut made without implementing the jumper cable would result in fatal electrocution. Verbalizing these steps were simple, reasonable and practicable measures he could have taken to prevent this tragedy from happening,but he did not. [80] Mr. Rowlett has not adduced any evidence that the cost in terms of time, trouble or money would have grossly exceeded thebenefit of saving the life of a worker had he actually discussed the procedure for the cut and installation of a jumper cable when planningor performing the work.

He could have done this by simply telling the workers that he was going to get a jumper cable or to wait untilafter the jumper cable was installed first before cutting the wire. These were other better and practical measures he should have taken tosecure his duty of safety towards his workers. [81] Mr. Rowlett also argues that the actions of Mr. Swahn and Mr. Gratton in cutting the shield wire were unforeseeable. Heclaims he is entitled to rely on the fact that workers were trained not to put oneself in series with an electrical current; that this is“bonding and grounding 101”.

The foreseeability of a hazard is properly considered as part of the defence of due diligence (see R vTimminco Ltd., (ON CA), 54 OR (3d) 21, [2001] OJ No 1443 (CA), at para, 28 and R v Rio Algom Ltd. (1988) (ON CA), 66 OR (2d) 674, 29 OAC 349(CA)). [82] In order to determine whether something is foreseeable, the background and contextual factors leading up to the incident mustbe analyzed as follows:

i) Mr. Rowlett was in charge directing the workers on the job of repairing the broken shield wire. The workers were taking theirinstructions from him; ii) Mr. Rowlett was familiar with the provisions of the SaskPower Safety Rule Book; iii) There was induction on the shield wire. The evidence of the witnesses is that the wire was glowing, arcing and smoking after theinitial ground probe was installed, thus necessitating the installation of a second ground probe; iv) There was risk of putting oneself in series given the current running through the shield wire if a jumper cable was not installed;

v) The installation of a jumper cable protects a worker from coming in series with an electrical current; vi) Mr. Rowlett’s regular crew members were not available that Saturday night to perform the repairs to the shield wire; vii) Aaron Gratton, Aaron Eckel and Kleon Swahn had to be brought in to perform the repairs and were not part of Mr. Rowlett’sregular crew; viii) Mr. Rowlett had not worked very much with either Mr. Gratton or Mr. Eckel; ix) Mr. Rowlett had never done this type of job before with Mr. Gratton or Mr. Eckel;

x) Both Mr. Gratton and Mr. Eckel did not have a lot of experience;

xi) Although he had worked with Mr. Swahn as a linemen on the same crew years before, Mr. Swahn was now a patrolman who did not regularly work on large line repair jobs such as this, except when he is called out because they need an extra guy; xii) Conditions changed at the job site so Mr.

Rowlett devised a new plan to repair the shield wire; xiii) the T&D Hazard & Risk Assessment Form was not reviewed or revised at the second meeting as required by SaskPower’s risk management policies and procedures; xiv) The second plan introduced new cutting and jumpering of the live shield wire on the ground inside the ground probes, which was not specifically discussed with the crew members; xv) Mr. Swahn paced out the length of the broken shield wire to be cut which placed the cut within the grounding; xvi) Mr. Rowlett did not have a jumper cable with him when Mr.

Swahn finished pacing off the shield wire; xvii) Jumper cables were in the truck; xviii) Mr. Rowlett told Mr. Gratton that cutters were in the truck; xix) Mr. Gratton retrieved cutters from the truck; xx) Mr. Rowlett personally wrapped the tape around the shield wire to mark the spot for the cut; xxi) Mr. Gratton approached Mr. Swahn and Mr. Rowlett with the cutters; xxii) Mr. Gratton asked, “Where am I cutting this?”; xxiii) Someone, either Mr. Rowlett or Mr. Swahn, said the cut would be made on the tape; xxiv) Mr. Swahn picked up the wire with both of his hands; xxv) Mr.

Swahn held the wire with both his hands apart and the taped portion where the cut was to be made in between them; xxvi) Mr. Rowlett did not tell Mr. Gratton or Mr. Swahn not to cut the shield wire; and xxvii) Mr. Rowlett did not say to Mr. Gratton or Mr. Swahn that he was going to get a jumper cable before the cut was made. [ 83 ] Based on all the above mentioned factors in this situation, it was reasonably foreseeable that Mr. Gratton would cut the shield

wire on the tape placed on it by Mr. Rowlett. It also was reasonably foreseeable that Mr. Swahn would be fatally electrocuted once the cut was made. [ 84 ] I appreciate the case law filed by defence counsel in support of its position. Unfortunately though, these cases are all from different jurisdictions dealing with different legislation and/or other factually unique and distinguishable work situations and workplaces different from the case at bar. Indeed, occupational health and safety cases are by their very nature, quite fact specific. [ 85 ] In conclusion then, Mr.

Rowlett has not established on a balance of probabilities that he took reasonable steps or measures necessary to avoid this accident. He was supervising workers who were lacking in experience repairing high voltage transmission power lines and who were lacking familiarity to him. Accordingly, he should have taken more time to ensure the plan was communicated clearly and the risks were evaluated fully as required in this situation.

Failing that, he should have clearly communicated when performing the work how the jumper and cut would be made and simply told the other crew members that he was going to get a jumper cable or not to make the cut until after it had been jumpered first. [ 86 ] These were more than just other ‘merely conceivable’ or ‘impractical’ steps that could have been taken to ensure worker safety. They were basic and simple reasonable steps that should have been taken to avoid injury or death to anyone. They were not so onerous as to outweigh the benefit of saving the life of a co-worker. I therefore, find the Mr.

Rowlett guilty of this offence of failing to ensure the health and safety of his workers when he failed to ensure a jumper cable was used prior to the cutting of the energized shield wire. 3. Failing to ensure Class II rubber gloves were used as required by the SaskPower Safety Rule Book? Actus Reus [ 87 ] The Rule Book contemplates the use of Class II rubber gloves in some situations, but not in other situations. The following additional provisions of the Rule Book are applicable here. The

Definitions

Section 0: Hazard : Source or situation with the potential of harm in terms of injury or ill health, damage to property, damage to work place environment, or a combination of these. Hazard analysis: A systematic evaluation of a condition or practice with a potential for loss. De-energized : The state that exists when: (

a) electrical apparatus is isolated from all sources of dynamic energy and grounded. . . . Isolated: The state that exists when apparatus is disconnected or interrupted from all sources of dynamic energy and controls have been put in place to prevent the change of position of the separating device(s). Personal Protective

Equipment (PPE): Any clothing, device or other

article that is intended to be worn or used by a worker to prevent injury or to facilitate rescue. [ 88 ]

Section 4 Protective Tools and Equipment provides: 400 GENERAL .1 The Hazard/Risk Analysis process will determine the protective tools and other PPE that are required for each job/task.

The PPE requirements shall be documented. .2 Protective tools and equipment shall be made available and shall be used at all work locations as required. .3 Workers shall be trained in the application and use of protective tools and equipment. . . . 401 HIGH AND LOW VOLTAGE RUBBER GLOVES, MITTS AND SLEEVES (GENERAL) .1 Rubber gloves shall be worn where the hazard and risk assessment requires them while performing hand contact work on all electrical apparatus that has not been de-energized. . . . .9 Rubber gloves are required when working on any apparatus that is not in the “verified” de-energized state, unless an approved work procedure dictates otherwise. . . . 404 CLASS II GLOVES .1 Class II rubber gloves shall be worn during direct hand contact with conductors or apparatus from 1 KV to 5 KV.

The use of Class II above 5KV will be dictated by approved work procedures. . . . .4 Class II rubber gloves shall NOT be used to handle energized 14.4 KV underground cable. [ 89 ] The Student Guide Explain Bonding & Grounding - Construction or Maintenance on Lines Paralleling, Contacting or Crossing Energized Circuits [Student Guide] filed as Exhibit P-5 at trial, is a guide for proper bonding and grounding procedures when a worker is performing maintenance on lines such as the broken shield wire being repaired by Mr. Rowlett and his crew on December 20, 2014. The Introduction on page 4 states:

The workers will learn the procedures for bonding and grounding when performing maintenance on an existing overhead line to protect them from electromagnetic induction, accidental energizing and static charge build-up. [ 90 ] In this case, the initial plan was to repair the shield wire while the workers were elevated in the air in the bucket truck. The plan changed when Mr. Rowlett realized the bucket truck would not reach high enough. The new plan now involved the workers being on the ground when the shield wire was taped and cut.

This involved a new situation of “Worker on the Ground” dealt with in the Student Guide. According to the Student Guide, the hazards to workers in this situation “. . . are electromagnetic induction, bridging across an open circuit, and step and touch potential from accidental energizing”. [ 91 ] The procedures to be followed in that situation are: • Bond across any opening to avoid putting yourself in series with the circuit • Wear rubber gloves when handling and repairing downed conductors (conductors then can be touched from the ground).

Building moves also require that conductors be lowered to the ground with some being cut and rolled back. Rubber gloves must be worn throughout when handling these conductors on the ground. . . . There are situations where it may not be reasonably practicable to wear rubber gloves when handling conductors on the ground. [ 92 ] The Crown argues that ss. 401.1 of the Rule Book and the procedures for a worker on the ground in the Student Guide require that rubber gloves be worn in general when repairing downed lines. However, there are a couple of problems with this argument.

The first is that ss. 401.1 and s. 401.9 clearly stipulate that this is only in situations where the line has not been “de-energized” first. It is not at all clear in this case that the downed shield wire was not de-energized. The evidence is that the shield wire was isolated by Isolation Permit #146817 on the line A1B circuit on the north side from steel tower structure 190 and that it had also been grounded with two separate ground probes. [ 93 ] Both Mr. Eckel and Mr.

Rowlett were of the opinion that the shield wire was de-energized when they were working on it (TT p. 36, lines 4 -10, p. 42, lines 35 -37; p. 145, line 34 to p. 146, line 18). It is not clear from Mr. Gratton’s testimony whether he thought the line was de-energized or not (TT p. 79, lines 7 - 23).

In the circumstances, I find the downed shield wire from structure 190 was de- energized so there was no requirement to wear rubber gloves while working on it according to Rule Book procedures 401.1 and 401.9. [ 94 ] Even if the wire was still energized, another bigger problem with the Crown’s argument is that there are specific exceptions to these general provisions requiring workers to wear rubber gloves. The Student Guide states “There are situations where it may not be reasonably practicable to wear rubber gloves when handling conductors on the ground”.

Section 401.9 of the Rule Book states that rubber gloves are not required where “an approved work procedure dictates otherwise”. This is consistent with the most important provision of the Rule Book dealing specifically with “Class II gloves” in ss. 404.1 that states the use of Class II rubber gloves above 5 KV is “dictated by approved work procedures.” [ 95 ] On the evidence in this case, the Crown has failed to demonstrate that the approved work procedure was for crew members to wear rubber gloves when repairing the 230 KV power lines.

Indeed, all the evidence points to the contrary that the approved work procedure was for SaskPower transmission line workers to not wear rubber gloves when working on high voltage transmission lines at that time.

[ 96 ] Mr. Rowlett testified that they had to treat the shield wire as capable of induction up to 230 KV from the overhead transmission power lines. [ 97 ] All the witnesses testified that it was an approved work procedure at SaskPower for workers not to wear rubber gloves when working on high voltage transmission lines. Mr. Eckel testified that when he was working in transmission, the accepted practice was that rubber gloves were not worn (TT p. 42, lines 6 - 9).

He was trained that this was an approved work procedure and the plan always was that before they touched anything to make sure that it was de-energized and grounded (TT p. 42, lines 31 - 37). The reason for this practice was the workers are dealing with voltages that exceed the tested ratings of the rubber gloves (TT p. 42, lines 11-14). Therefore, wearing the gloves could give workers a false sense of security to believe that they were protected when they were, in fact, not protected. [ 98 ] This was confirmed by the testimony of Mr.

Gratton when he stated, “And I’d been in quite a few meetings where they were talking about how they don’t protect you on transmission lines, the rubber gloves, ‘cause they’re too - they’re not made for the high voltage” (TT p. 75, lines 9-11). [ 99 ] Mr. Gratton and Mr. Rowlett also stated that there is only one type of transmission line work that requires wearing rubber gloves (TT p. 84, lines 33 - 39 and p. 104, lines 22 - 29) and that is operating line switches (TT p. 104, line 26), which is not applicable here. [ 100 ] Mr.

Rowlett testified that in his 22 years of experience with SaskPower up until the accident in question had occurred, no workers undertaking transmission work of this nature would wear Class II rubber gloves. This practice occurred because the gloves gave workers a false sense of security, in that they did not provide protection to the worker 100% of the time.

He was not aware of anyone ever being disciplined by SaskPower for not wearing rubber gloves during transmission work (TT p. 104, lines 22 - 41, p. 105, lines 2 - 12). [ 101 ] He further testified that the Rule Book is written for the entire corporation, including the distribution, transmission and power production divisions of SaskPower, while this approved working practice applied only to workers in the transmission division. This was consistent with Mr.

Eckel’s testimony that they would wear rubber gloves when working in the distribution division, which only deals with voltage lines up to 40 KV and where the rubber gloves still afforded protection. In Mr. Rowlett’s experience, the working practice takes precedence over the written rule (TT p. 105, lines 30 - 41). As far as he knew his superiors were aware that his crew did not regularly wear rubber gloves and he had never received a complaint or any direction to do the opposite (TT p. 106, lines 16 - 32). [ 102 ] I therefore, find that the Rule Book did not require Mr.

Rowlett to ensure his workers were wearing Class II rubber gloves when repairing the shield wire. Instead, I find Mr. Rowlett fulfilled the requirements of s. 400 of the Rule Book. The Crown has not proven beyond a reasonable doubt that Mr.

Rowlett failed to ensure the health and safety of the workers because the approved work procedure at SaskPower at that time was for workers to not wear rubber gloves when working on transmission lines. [ 103 ] There was no evidence in this trial of the industry standard or best practices surrounding the use of approved rubber insulating gloves, mitts and sleeves when working on transmission lines at other major power utilities in North America.

There was evidence that SaskPower has since changed its practice and communicated to its employees that they are now required to wear rubber gloves when working on transmission lines. This makes sense in light of subsection 97(2) of The Occupational Health and Safety Regulations, 1996 . However, it does not change my finding of fact based on the limited evidence available on this subject at trial from these three employees of SaskPower that revealed this was not the approved work procedure that existed and was in place on December 20, 2014. [ 104 ] Lastly, Mr.

Gratton’s testimony that in hindsight, rubber gloves “probably” or “should have” worked is not sufficient evidence when the Crown is required to prove beyond a reasonable doubt a failure to ensure safety by not using rubber gloves resulting in Mr. Swahn’s death. Due Diligence [ 105 ] Even if the Crown had demonstrated that the approved work procedure was to wear gloves, I still would have found Mr.

Rowlett exercised due diligence and took reasonable all care for much of the same reasons mentioned above as well as his additional reasonable, but mistaken, belief that not wearing rubber gloves was the approved work procedure or acceptable practice at SaskPower at

the time. He clearly was of the subjective view that he was not in breach of s. 400 of the Rule Book as he was operating within an approved work practice that he had used his entire career at SaskPower (TT p. 106, lines 1 - 14). [ 106 ] Mr. Rowlett followed this procedure which he believed was the approved practice or procedure of his employer. This belief was based on his over 20 years of experience with the company and his having performed this particular task of repairing a broken shield wire without wearing rubber gloves approximately 75 to 100 times during his career.

He reasonably believed in a mistaken set of facts, which if true, would have rendered this act innocent. A reasonably objective person in the same set of circumstances as Mr. Rowlett would have felt the same way and done the same thing. [ 107 ] It was not practicable or not reasonably practicable to expect Mr. Rowlett to disobey the rules of his employer and insist his workers wear Class II rubber gloves when it was his understanding this was not the approved work procedure at SaskPower at the time.

Wearing rubber gloves while working on high voltage transmission lines was a dangerous practice because it gave workers a false sense of security. There was no benefit but only a tremendous cost associated with this work practice. It was an illusory protection that could cost workers injury or the loss of life when working on high voltage transmission lines.

It afforded no better practical means or work practice than was actually done to satisfy the requirements of the Rule Book and duty of safety to workers. [ 108 ] I therefore find that all the requirements of the defence of due diligence have been made out by Mr. Rowlett. He actually or he reasonably, but mistakenly, followed the Rule Book and accepted work practices of SaskPower when it came to the use of rubber gloves at that time. In doing so, he took all reasonable measures and care to ensure the health and safety of his workers and is not guilty of this offence. CONCLUSION [ 109 ] Mr.

Rowlett is guilty of the offences set out in Counts 1 and 3 of failing to ensure the safety of a worker he was supervising when he failed to follow the SaskPower Safety Rule Book procedure to review and revise the job hazard identification and risk assessment and when he failed to ensure a jumper cable was used prior to the cutting of the energized shield wire, respectively. As a result of these failures, Kleon Swahn was fatally electrocuted. However, Mr.

Rowlett is not guilty of the offence in Count 2 of failing to ensure the safety of workers by not ensuring rubber gloves were worn as this was not the accepted work practice of SaskPower at the time. ______________________ J.F. Rybchuk, J