CITATION : Ontario (Ministry of Labour) v. Nault , 2018 ONCJ 321 DATE : May 11, 2018 IN THE MATTER OF the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 Between Her Majesty The Queen In Right Of Ontario (Ministry of Labour) Prosecutor and Jason NAULT and Antonio DIBARTOLOMEO Defendants Ontario Court of Justice Brampton, Ontario Quon J.P. Reasons for Judgment Trial Heard: January 9, 2018. Oral Judgment: March 9, 2018. Written Judgment released: May 11, 2018. Charges :

(1) Jason Nault is charged with “worker operate equipment in a manner that may endanger himself or another worker”, contrary to s. 28(2) (

b) of the O.H.S.A.

(2) Antonio DiBartolomeo is charged with “worker operate equipment in a manner that may endanger himself or another worker”,

contrary to s. 28(2)(

b) of the O.H.S.A. Counsel: D. Simpson, prosecutor for the Ministry of Labour. Jason Nault, self-represented Antonio DiBartolomeo, self-represented Cases Considered or Referred To: Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75 , [2013] O.J. No. 520 (Ont. C.A.), per MacPherson, Armstrong and BlairJJ.A. Lévis (City) v. Tétreault, 2006 SCC 12 , [2006] S.C.J. No 12 (S.C.C.). Niagara (Regional Municipality) v. Kosyatchkov, [2013] O.J. No. 424 (Ont. S.C.), per Ramsay J. Ontario (Ministry of Transportation) v. Balasubramaniam, [2017] O.J. No. 5007 (Ont. C.J.), per Quon J.P. Ontario (Ministry of Transportation) v.

Don’s Triple F Transport Inc., 2012 ONCA 536, [2012] O.J. No. 3754 (Ont. C.A.), per Feldman,Armstrong JJ.A. and Himel J. (ad hoc). Ontario (Ministry of Labour) v. Enbridge Gas, 2011 ONCA 13, [2011] O.J. No. 24 (Ont. C.A.), per Watt J.A. (in chambers). Ontario (Ministry of Labour) v. Hamilton (City) (2002), (ON CA), 58 O.R. (3d) 37 (Ont. C.A.), per Weiler, Sharpeand Simmons JJ.A. Ontario (Ministry of Labour) v. Sheehan's Truck Centre Inc., 2011 ONCA 645 , [2011] O.J. No. 4510 (Ont. C.A.), perRosenberg, Cronk and Watt JJ.A. R. v. Blair, [1993] O.J. No. 1477 (Ont. Ct. (Prov. Div.)), per Harris J. R. v.

Brampton Brick Ltd., [2004] O.J. No. 3025 (Ont. C.A.), per Weiler, Laskin and Feldman JJ.A. R. v. Canada Brick Ltd., [2005] O.J. No. 2978 (Ont. S.C.), per Hill J. R. v. Canadian Tire Corp., (ON SC), [2004] O.J. No. 3129 (Ont. S.C.), per Hill J. R. v. Cancoil Thermal Corp. (1988), 1 C.O.H.S.C. 169 (Ont. Prov. Ct.), per Megginson J. R. v. Chrima Iron Works, 2007 ONCJ 78, [2007] O.J. No. 726 (Ont. C.J.), per Rogerson J.

R. v. Cooper's Crane Rental

(1987) Ltd., [1990] O.J. No. 1868 (Ont. Ct. (Gen. Div.)), per Mandel J. R. v. Courtaulds Fibres Canada (1992), (ON CJ), 76 C.C.C. (3d) 68 (Ont. Prov. Div.), per Fitzpatrick J. R. v. Dofasco Inc., 2007 ONCA 769 , [2007] O.J. No. 4339 (Ont. C.A.), per Winkler C.J.O., Simmons and MacFarland JJ.A. R. v. Gonder (1981), (YK TC), 62 C.C.C. (2d) 326 (Y.T.C.), per Stuart C.J. R v. MacMillan Bloedel Ltd., [2002] B.C.J. No. 2083 (B.C.C.A.). R. v. Petro-Canada, 2008 ONCJ 558 , [2008] O.J. No. 4396 (S.C.C.). R. v. Petro-Canada (2003), (ON CA), 171 C.C.C. (3d) 354 (Ont. C.A.), per Catzman, Laskin and Goudge JJ.A. R. v.

Pierce Fisheries Ltd., (SCC), [1971] S.C.R. 5 (S.C.C.). R. v. Pioneer Construction Inc., (ON CA), [2006] O.J. No. 1874 (Ont. C.A.), per Weiler, Rosenberg andMacPherson JJ.A. R. v. Rio Algom Ltd. (1988), (ON CA), 66 O.R. (2d) 674, 46 C.C.C. (3d) 242 (Ont. C.A.) per Howland C.J.O.,Goodman and Grange JJ.A. R. v. Sadeghi-Jebelli, 2013 ONCA 747, [2013] O.J. No. 5728 (Ont. C.A.), per Laskin, Gillese and Strathy JJ.A. R. v. Sault Ste. Marie (1978), (SCC), 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353 (S.C.C.). R. v. Saunders, (SCC), [1990] 1 S.C.R. 1020 (S.C.C.). R. v.

Timminco Ltd. (2001), (ON CA), 54 O.R. (3d) 21, [2001] O.J. No. 1443 (Ont. C.A.), per Osborne A.C.J.O.,Charron and Feldman JJ.A. R. v. Vézina, (SCC), [1986] 1 SCR 2 (S.C.C.). R. v. Wyssen (1992), 10 O.R. (3d) 195 (Ont. C.A.) per Dubin C.J.O., Finlayson and Blair JJ.A. York (Regional Municipality) v. Tassone, 2007 ONCA 215 , [2007] O.J. No. 1109 (Ont. C.A.), per Sharpe, Simmons and CronkJJ.A. Statutes, Regulations and Rules Cited:

Highway Traffic Act , R.S.O. 1990, c. H.8, ss. 78.1(1) and 106(2) . Industrial Establishments Regulation ( O.H.S.A. ), R.R.O. 1990, Reg. 851 . Occupational Health and Safety Act , R.S.O. 1990, c. O.1, ss. 28(1)(d), 28(2) (b), and 66(1) (a). Proceedings Commenced By Certificate Of Offence Regulation ( O.H.S.A. ) , R.R.O. 1990, R eg. 950, s . 5(1) and Schedules 66.2, 67, 67.1, 67.2, 67.3, 67.4, 67.5, 68, and 69. Provincial Offences Act , R.S.O. 1990, c. P.33, ss. 3(2)(b), 13(1) (b), 13(2) , 13(3) , 25 , and 25(3) . Authorities or Reference Material Referred to or Considered: Libman, R.

Libman on Regulatory Offences in Canada, (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., (student edition #1 (2014)). Swaigen J., Regulatory Offences in Canada - Liability & Defences (Scarborough, Canada: Carswell - Thomson Professional Publishing, 1992), p. 81.

Exhibits Entered: Exhibit "1" - photographs of two signs taken by MOL Inspector Neil Martin on December 22, 2016, which are posted outside the employees’ lunchroom just before employees would enter the production and warehouse area of the Coca Cola plant located 15 Westcreek Boulevard, in the City of Brampton. (2 pages) First sign: This sign has a heading that states: “Core Safety Rules”. The first paragraph of that sign also states: “It is the Company’s policy and expectation that every associate conducts himself or herself in a manner that will not jeopardize their own safety or the safety of others.

Adherence to company safety rules is mandatory and subject to standard disciplinary procedures if violated. However, due to the potential of resulting in serious or life-threatening injury or illness to either the person performing the action or others, the following Core Safety Rules have been adopted. Therefore, a violation of a “core Safety Rule” can warrant discipline, up to and including termination of employment”.

In addition, the last paragraph of that sign states, “your responsibility is to perform your work in a safe and healthy manner, to follow established safety rules and procedures, and to report or address unsafe acts or conditions to your supervisor. Ultimately it’s each individual’s responsibility to follow safe work practices. Safety is the responsibility of each associate.” Second sign: This sign has the following heading: “Coca-Cola Refreshments. Welcome to the Brampton Production & Distribution Centre”. Also, in this sign are graphics and wording.

There are also three headings which indicate: “Required PPE, Required Actions, and “Not Allowed”. Under the heading “Not Allowed” are graphic symbols in a circle with a diagonal slash across the respective symbols. One of the graphic symbols is of a “cell phone” with words underneath it that state: “No Personal Communications Devices”. There is also a graphic symbol of a “personal media device and headphones” with the wording underneath it that state: “No Personal Media Devices”.

Exhibit "2" - copy of Brampton Warehouse Employee Incident Report dated “December 19 th” .

The Report states that the “Incident time” is “8:03 AM”, that the “Type of Incident” states it is in respect to: “Cell Phone Use”, and that the “Author” is stated as “Joe Hunt”. (1 page) Exhibit "3" - copy of “Will State of Joe Hunt” dated October 10, 2017, signed by both “Joe Hunt” and MOL Inspector “Neil Martin”. (1 page) Exhibit "4" - photographs of two signs taken by MOL Inspector Neil Martin on December 22, 2016, that are posted outside the employees’ lunchroom just before employees would enter the production and warehouse area of the Coca Cola plant located 15 Westcreek Boulevard, in the City of Brampton. (2 pages) First sign: This sign has a heading that states: “Coca-Cola Refreshments.

Welcome to the Brampton Production & Distribution Centre”. In this sign are also graphics and wording. In addition, there are three headings which indicate: “Required PPE, Required Actions, and “Not Allowed”. Under the heading “Not Allowed” are graphic symbols in a circle with a diagonal slash across the respective symbols. One of the graphic symbols is of a “cell phone” with words underneath it that state: ”No Personal Communications Devices”. There is also a graphic symbol of a “personal media device and headphones” with the wording underneath it that states: “No Personal Media Devices”.

Second sign: This sign was displayed on the video monitor and has a heading that states: “Use of Personal Cell Phones”. The first sentence of that sign states: ¡ Personal Media Devices and Personal Cellular Telephones are strictly prohibited in all work areas, inside and outside of the building.

Work areas are defined as: ¡ Production Filling rooms and Packaging Areas ¡ QA Lab, Water Treatment, and Syrup Room ¡ Warehouse and Shipping/Receiving Areas ¡ Maintenance Shop ¡ Outside Truck Pad, Loading Docks and Pallet Yard ¡ All Coca-Cola Vehicles ¡ Fleet Garage Area Exhibit "5" - copy of a photograph that was taken on December 22, 2016, at the Coca-Cola plant located 15 Westcreek Boulevard, in the City of Brampton, which shows the back of the defendant, Jason Nault, who is sitting on a stationary forklift that is located at the end of a row, and which also shows Jason Nault holding a scanner with an illuminated screen. (1 page) Exhibit "6" - copy of a photograph that was taken on December 22, 2016, at the Coca-Cola plant located 15 Westcreek Boulevard, in the City of Brampton, which shows the back of the defendant, Jason Nault, who is sitting on a stationary forklift that is located at the end of a row, and which also shows Jason Nault holding a cellphone with an illuminated screen. (1 page) Exhibit "7" - copy of a photograph that was taken on December 22, 2016, at the Coca-Cola plant located 15 Westcreek Boulevard, in the City of Brampton, which shows the close-up of the scanner with an illuminated screen that was shown in Exhibit “5” that was being held by Jason Nault. (1 page) 1.

INTRODUCTION

[ 1 ] Like motorists who unlawfully hold or use cellphones or other mobile communication devices while operating or driving motor vehicles on public highways in Ontario, workers that use cellphones or other mobile communication devices while operating equipment or machines in factories or warehouses, such as a forklift, would also pose the same danger to themselves or others, as a consequence of being distracted to what is going on around them while using those mobile communication devices. [ 2 ] In this case, the defendants, Jason Nault and Antonio Dibartolomeo, had been both assigned on December 19, 2016, by their employer, Coca-Cola Refresh​ments Canada, to drive or operate forklifts for the purpose of transporting pallets of bottles and cans of product coming off the production line to the warehouse area for storage.

Another worker, Joe Hunt, had also been assigned on the same day to operate a forklift in the same warehouse area of the Coca-Cola plant where both defendants had been operating their respective forklifts.

At trial, Joe Hunt had testified to having observed the two defendants at approximately 8:05 a.m. on December 19th sitting on their respective forklifts in a stationary position and holding and looking at cellphones, which for safety reasons were devices that had been forbidden by their employer to be in the warehouse or production areas of the Brampton Coca-Cola Production and Distribution Centre located at 15 Westcreek Boulevard, in the City of Brampton.

Because of the danger to himself and others, Joe Hunt had complained to his supervisor and then to management at the plant about workers holding and using cellphones while operating forklifts in the warehouse area of the plant, and then had refused to work until the potential danger to himself had been addressed. Management at the plant had tried to resolve the safety concerns raised by Joe Hunt internally, but were unable to do so to Joe Hunt’s satisfaction. As a result, the Ministry of Labour (MOL) were called and informed about a worker who had refused to work because of safety concerns at the plant.

MOL Inspector Neil Martin was then assigned to investigate the “work refusal” complaint at the Coca-Cola plant and on December 22, 2016, MOL Inspector Martin attended the Coca Cola plant located at 15 Westcreek Boulevard, in the City of Brampton, to investigate the complaint. [ 3 ] To reiterate, as part of Coca-Cola’s safety policy, cellphones and other mobile communication devices are forbidden to be taken inside the production and warehouse areas of the Coca-Cola plant by employees.

This company policy banning these devices from being in the production and warehouse areas is posted on a sign and also displayed on a television monitor located just outside the employees’ lunchroom, which employees would see just before they entered the production and warehouse areas of the plant. Furthermore, the sign and the television monitor also contain notices or information about other safety measures and company safety policies.

Ergo, for safety reasons and subject to disciplinary action by their employer, the defendants had been prohibited by their employer from taking their personal cellphones or mobile communication devices into the production or warehouse areas. [ 4 ] Consequently, after interviewing and speaking to managers at the Coca-Cola plant; Joint Health and Safety committee members; Joe Hunt, the worker who filed a “work-refusal” complaint; a worker named Mohammad Andrees, who was also working in the warehouse area on December 19, 2016; and the two defendants, Jason Nault and Antonio DiBartolomeo; and after completing his investigation at the Coca-Cola manufacturing plant located at 15 Westcreek Boulevard, in the City of Brampton, MOL Inspector Martin charged both Jason Nault and Antonio DiBartolomeo (“the defendants”) on December 22, 2016, and January 5, 2017, respectively, for contravening s. 28(2) (

b) of the Occupational Health and Safety Act , R.S.O. 1990, c. O.1 (“ O.H.S.A. ”), for being workers who had operated equipment in a manner that may endanger himself or another worker. [ 5 ] In their defence, both defendants contend that neither of them had been engaged in driving or operating their forklifts at the time that Joe Hunt may have seen them holding or viewing their cellphones, since both of their respective forklifts had been stationary at the time and turned off.

Moreover, for Antonio Dibartolomeo’s defence to the charge in particular, Dibartolomeo said he was not on his forklift, but off of his forklift, which had been stopped and turned off, and that he had not been using his cellphone, since he had handed his cellphone off to another worker named Mohammad Andrees, who had been the one who had been using Dibartolomeo’s cellphone to download an application onto the cellphone for Dibartolomeo.

And, as for Jason Nault’s particular defence to the charge, Nault said that firstly, he had been using a company scanner in the warehouse area to locate product and that Joe Hunt may have mistakenly thought that the scanner he was using was a cellphone; and that secondly, if it is determined that Hunt did indeed observe Nault using a cellphone while he was seated on his forklift then Nault contends that he had not been using his cellphone for personal use but had been using his cellphone for work purposes, as a calculator to keep track of the number of pallets of product in order to determine where to move and store product, and to also use it as a watch, as there were no clocks displayed in the warehouse area, so that he would know when to take his breaks.

Nault also contends that he had not been operating a forklift and that it had been stopped and turned off when he was using his cellphone for work purposes. Moreover, Nault contends that when he was using his cellphone for work purposes, his turned-off forklift had been stopped at the end of a row so that he would not have posed any danger to anyone else in the warehouse area. [ 6 ] On the other hand, the prosecution submits that the circumstance of a worker operating equipment in a manner that may endanger himself or another worker under s. 28(2)(

b) should be interpreted broadly to include a worker using a cellphone while standing beside a turned-off stationary forklift or while sitting on a turned-off stationary forklift in a work area where there are the presence of other workers and workers using equipment or machines. [ 7 ] Accordingly, for the reasons that follow, the prosecution has met their legal burden in proving beyond a reasonable doubt that both defendants, Jason Nault and Antonio Dibartolomeo, have committed the actus reus of their respective offences under s. 28(2) (b), and because neither defendant has respectively met their burdens in proving either branch of the defence of due diligence on a balance of

probabilities, then both defendants will be convicted of committing the offence of “ w orker operate equipment in a manner that may endanger himself or another worker , contrary to s. 28(2) (

b) of the O.H.S.A. [ 8 ] The trial of the two charges had been held over three days: May 11, 12, and 18, of 2017. After closing submissions, judgment was reserved and adjourned to be given on March 13, 2018. On March 13, 2018, oral reasons were given that found the two defendants had been guilty of contravening s. 28(2) (

b) of the O.H.S.A. , with the proviso that a written judgment would follow. These, therefore, are the written reasons for the oral judgment that was given on March 13, 2018: 2. THE CHARGES [ 9 ] By

Part 1 Certificates of Offence and summonses issued to Jason Nault and Antonio DiBartolomeo, both were charged with contravening s. 28(2) (

b) of the O.H.S.A. , which states: 28(2) No worker shall, … (

b) use or operate any equipment, machine, device or thing or work in a manner that may endanger himself, herself or any other worker; or … [ 10 ] For the defendant, Jason Nault, he was charged specifically on Certificate of Offence #31609524926Z that was filed on December 29, 2016, with the following offence: on the day of 2016 12 19 8:05 AM Jason NAULT (municipal address removed for privacy] , Barrie, Ontario, [postal code removed for privacy], at COCA-COLA 15 Westcreek Blvd BRAMPTON did commit the offence of Worker operate equipment in a manner that may endanger himself or another worker Contrary to the Occupational Health and Safety Act, R.S.O. 1990, c.

O.1 , Sect. 28(2)(b). [ 11 ] For the defendant, Antonio DiBartolomeo, he was charged specifically on Certificate of Offence #31609524927 that was filed on

January 5, 2017, with the following offence: on the day of 2016 12 19 8:05 AM Antonio DiBartolomeo (municipal address removed for privacy] , Barrie, Ontario, [postal code removed for privacy], at COCA-COLA 15 Westcreek Blvd BRAMPTON did commit the offence of Worker operate equipment in a manner that may endanger himself or another worker Contrary to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 , Sect. 28(2)(b). [ 12 ] Moreover, if the defendants are convicted of contravening s. 28(2) (

b) of the O.H.S.A. , then under s. 66(1) (

a) of the O.H.S.A. they are subject respectively to a maximum fine of $25,000 or to imprisonment for a term of not more than 12 months, or to both [ emphasis is mine below ]: Penalties 66(1) Every person who contravenes or fails to comply with , (

a) a provision of this Act or the regulations ; (

b) an order or requirement of an inspector or a Director; or (

c) an order of the Minister, is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than twelve months, or to both . 3. BACKGROUND (

a) Four Witnesses Testified In The Trial

[ 13 ] At the trial, four witnesses testified. Two witnesses testified for the Crown while both defendants had testified in their own defence. [ 14 ] For the Crown, their 2 witnesses were Joe Hunt, a now retired and former employee of the Brampton Coca-Cola Production and Distribution Centre, who had been the worker that had refused to work and then filed a complaint with the management of the company about workers using cellphones while operating forklifts in the warehouse area, and

(2) Neil Martin, the MOL inspector, who had investigated the complaint and then charged both defendants. (

b) Summary of the Testimony From The Four Witnesses (

i) Joe Hunt, retired and former employee of Coca-Cola [ 15 ] Joe Hunt testified that he has now retired from working for the Coca-Cola Refreshments Canada company after 30 years of employment with them.

He also said that on December 19, 2016, he had been assigned to operate a forklift to load and unload a trailer in the warehouse or IPT (International Provincial Transport) part of the Brampton Coca-Cola Production and Distribution Centre located at 15 Westcreek Boulevard in the City of Brampton. [ 16 ] In addition, Joe Hunt said he knows the two defendants, Jason Nault and Antonio Dibartolomeo, who were both driving forklifts in the production area of the plant on December 19, 2016, while Hunt was driving a forklift in the warehouse part of the plant on the same day.

However, Joe Hunt said that he did not have any direct interaction with them on that day, but did observe both of them in the “aisles” of the warehouse operating forklifts. [ 17 ] On that day of December 19th, Joe Hunt said that he had been given 30 pallets of product to load onto a trailer in the warehouse area of the plant and had used a hand-held scanner to locate the whereabouts of the product in the warehouse.

In driving his forklift towards that location of where the product in the warehouse was shown to be on the scanner, Hunt said that he had being driving down one aisle when he had observed a forklift parked in the aisle about 50 feet away from Hunt, which Hunt said was being operated by Jason Nault. Joe Hunt also said at that moment he had observed Jason Nault seated on the forklift looking at a cellphone that Jason Nault was holding, but not talking into it.

Hunt also said that he could not get by the parked forklift being operated by Nault, so he then honked his horn once and then proceeded the other way to get around the parked forklift. In addition, Joe Hunt said that the forklift that was being operated by Jason Nault was stationary and not moving, but that it had been on. [ 18 ] In respect to what he had observed about Antonio Dibartolomeo on December 19, 2016, Joe Hunt testified that when Hunt had been driving his forklift in the main aisle, he had tried to go in the same aisle where Dibartolomeo was situated, which was either the “K” or “L” aisle.

He said that Dibartolomeo had been in the racking and backing up, which was about 50 feet away from Hunt. Joe Hunt also said that he had observed Dibartolomeo showing his cellphone to Mohammed Andrees, another employee of the company. In addition, Hunt said that Andrees’ job was warehousing in which Andrees had to move one rack of product to another for production. Furthermore, Hunt said that he had observed both Andrees and Dibartolomeo seated on their respective forklifts when Dibartolomeo had been backing out of a rack.

Hunt then said that Dibartolomeo had stopped right beside Mohammed Andrees, forming a T-shape with their respective forklifts. Then, when Dibartolomeo and Andrees were in close proximity to each other, Hunt said that he had observed Dibartolomeo show Andrees something on Dibartolomeo’s cellphone.

At that point, Joe Hunt said that he was upset, since he had been in a bad mood from being assigned a difficult job for which he was not trained for and because he had to find a different route to go around both Dibartolomeo and Andrees. [ 19 ] Joe Hunt then said that he went to his supervisor and put in a “work refusal” because of the workplace being unsafe due to employees with cellphones on forklifts. Furthermore, Hunt said that the company policy on cellphone use was that once a worker got on the floor past the lunchroom then no cellphones were permitted.

Hunt also said there was a big poster located outside the lunch room before a worker would enter the production floor that contained a picture of a cellphone with an “X” on it. Moreover, Hunt said that he had been trained on this company policy against cellphones being on the floor and that he had helped in implementing this policy. Hunt also explained that approximately 3 to 3½ years earlier he had run into a problem in the afternoon with another worker who had been seated diagonally on a forklift.

In explaining what happened on that earlier occasion, Hunt said he had been going backwards with product on his forklift and had honked his horn at the parked forklift. He then went to his supervisor and then to the front reception to speak with the manager about the workplace problem. [ 20 ] In addition, when Joe Hunt was shown a photograph of the sign that is located outside the lunchroom (Exhibit “1”), Hunt

confirmed that the picture of the cellphone with the “X” on it was what he had earlier described as the company policy against cellphones on the floor.

Hunt also said that he believes that there is one of those signs also displayed in the warehouse area. [ 21 ] Furthermore, Joe Hunt said that there is also a T.V. monitor on the production wall opposite the door to the lunchroom, which continuously keeps showing different safety measures and policy. [ 22 ] When asked why he had launched the “work refusal”, Joe Hunt explained that he had been on the Joint Health and Safety Committee for 5 years at the Thorncliffe Coca-Cola plant (which had closed in 2011), and that he had taken an oath when he joined the Committee, so that he could not just ignore what was going on the floor. [ 23 ] Furthermore, when cross-examined by the defendant, Jason Nault, about which aisle Hunt had actually seen both of the defendants on their forklifts while holding cellphones, Joe Hunt said that his memory was vague because it had been so long ago and because he did not take notes.

Hunt also said he could not explain nor identify the difference between a “row” and an “aisle” when he had referred to seeing the defendants on their forklifts in an “aisle”. [ 24 ] And, then when asked in cross-examination on how many times Hunt had called the Ministry, Joe Hunt replied that he had only called the Ministry in respect to cellphones and riders on forklifts. [ 25 ] In addition, during cross-examination, the defendant, Antonio Dibartolomeo, had asked Joe Hunt why he had given two conflicting statements, one being a statement given by Hunt on December 19, 2016 (Exhibit “2”) and a typed “will-say” signed by Hunt and MOL Inspector Martin and dated October 10, 2017 (Exhibit “3”). [ 26 ] In the December 19, 2016, statement, Joe Hunt had written that at 8:03 a.m.

Jason Nault had been stopped in “isle Q024” and that “M. Andrees approached behind to get by and blew horn and asked Jason to move. Then Jason left. After Tony and M. Andrees had a little conversation over something Tony showed to Andrees.

At this time I felt it was unsafe to drive and reported to Ed Moffatt”. [ 27 ] And, for the supposedly conflicting statement given by Hunt on October 10, 2017 (Ex. 3), which was a typed “will-say” prepared by MOL Inspector Neil Martin, in which the “will-say” indicated that Joe Hunt would say that: “On December 19, 2016, I observed Jason Nault operating a forklift when he was using his cellular telephone. He was in the middle of the aisle, stationary on the phone. He was holding it in his hand. I do not know if he was playing games or texting. I was trying to get by and could not.

I had to honk my horn a couple of times. On the same date, I observed Tony Dibartolomeo holding his cellular telephone when he was seated on his forklift. The forklift was not moving. He reached out with it to show Mohammed. He did not get off his fork lift”. [ 28 ] In reply to that question about the conflicting answers, Joe Hunt said that for the second statement Hunt had given on October 10, 2017 (Exhibit “3”), Hunt said that MOL inspector Neil Martin had come to his house.

In addition, Hunt said that at that point he had been out of work for a while and that he did not have any notes in front of him and had based his second statement on his memory and did not know the exact times and locations, and had called the location an “aisle” instead of a “row”, since he did not realize that he would be called as a witness.

Moreover, Joe Hunt said he had looked for his notes and details that he had written down for the trial, but had cleaned out his locker when he had retired and had dumped out a lot of things, and this trial was now occurring nearly a couple of years after his retirement. [ 29 ] In addition, Joe Hunt said that the handwriting for the top part of the December 19, 2016, handwritten statement, was not his handwriting. However, for the bottom part of that December 19 statement he did admit that it had been his handwriting and that he had written that part on December 19.

And, as for the October 10, 2017, typed statement, Hunt said that he did not prepare that statement. [ 30 ] Furthermore, Joe Hunt said that the defendants were in the racking area, but is not quite sure what is called an “aisle” and what is called a “row”. However, Joe Hunt said that they were not tucked away. Moreover, Joe Hunt said that his first statement (Exhibit “2”) had been based on what he had noticed, which was that Jason Nault was seated and in the middle of an “aisle” or “row” and that Jason Nault was on his cellphone.

But more importantly, Joe Hunt said that Jason Nault was not moving and not scanning any product and that Joe Hunt is able to tell the difference between a “scanner” and a “cellphone”, and that Nault was not using a scanner, since Hunt himself was also using a scanner to do his job on December 19 th and using a scanner requires holding it by the black handle of the scanner.

(ii) Neil Martin, MOL Inspector [ 31 ] MOL Inspector Neil Martin testified that he has been employed as an inspector with the Ministry of Labour for 13 years. He also said that the Ministry of Labour had received a complaint from Joe Hunt near the end of November of 2016 about an unsafe situation involving forklift operators using hand-held communication devices while operating a forklift in the warehouse and production area of the Coca-Cola plant.

As a result of the complaint, MOL Inspector Martin said he was assigned the complaint and responded by convening a meeting of the Joint Health and Safety Committee of management and worker members and the Health and Safety Manager of the Brampton Coca-Cola Production and Distribution Centre located at 15 Westcreek Boulevard in the City of Brampton. [ 32 ] Moreover, MOL Inspector Martin said that Coca-Cola Refreshments Canada is an employer and that the Brampton Coca-Cola Production and Distribution Centre is an industrial establishment under the O.H.S.A. Regulations.

At the meeting, MOL Inspector Martin said he had discussed the complaint with the workplace parties. In addition, he said that the company had an internal policy that restricted the use of mobile devices, which included cellphones, in the warehouse because of safety concerns. He also said he had learned of an earlier incident in which a worker had been struck by a forklift in the warehouse and that cellphone use had been blamed for the cause of the accident.

Furthermore, he was advised that the workplace parties had looked into that accident and had used their internal response system to deal with their concerns. [ 33 ] Shortly after MOL Inspector Martin’s visit to the Coca-Cola plant to conduct the meeting with the Joint Health and Safety Committee, MOL Inspector Martin said the Ministry of Labour received a “work refusal” complaint from Joe Hunt on December 19, 2016.

Moreover, MOL Inspector Martin said that the workplace parties’ had conducted an internal investigation into the “work refusal” by Joe Hunt, but were not able to resolve the refusing worker’s safety concerns. MOL Inspector Martin said he then contacted the management of the company and was informed that the refusing worker had been reassigned to different work.

At that point, MOL Inspector Martin said he had arranged to meet with the affected workers on December 22, 2016. [ 34 ] On December 22, 2016, MOL Inspector Martin said he had attended the Brampton Coca-Cola Production and Distribution Centre at 15 Westcreek Boulevard. He also said he had brought his tape recorder with him. He then said he met and with Joe Hunt, as well as taking a statement from Hunt.

In addition, MOL Inspector Martin said he also spoke with Michael McGarrigle, a management member of the Coca-Cola company, and had collected the company policy on the use of cellphones in the warehouse area of the plant, and also did a physical inspection of the warehouse area. [ 35 ] In the warehouse area, MOL Inspector Martin said he had observed signage that was posted that had indicated that the use of cellphones and personal communication devices was prohibited in different areas of the plant.

He also said that he had learned that Joe Hunt had observed Jason Nault and Antonio Dibartolomeo in the warehouse area designated as “QR024”. Moreover, MOL Inspector Martin said he had also attended that location in the warehouse, but learned that it was actually designated as “Q1024”. In that location, MOL Inspector Martin said he had observed warehouse racking that would support heavy skids of bottles and cans, which were product that was manufactured at the plant.

He also said the forklifts used to pick up the product were a double-wide type of forklift, which can pick up 2 skids of product at once, and which are much bigger and heavier than the typical one-lift forklift seen at most warehouses. Moreover, he said the warehouse area had been well lit. In addition, he said there were pedestrian walking areas and aisleways in the warehouse area in which forklifts would meet.

He also said there were rules in place which governed the intersections in the warehouse area where forklifts would meet each other. [ 36 ] Furthermore, MOL Inspector Martin said he had spoken with the defendant, Jason Nault, who he had cautioned and in which he said he had tape-recorded their conversation. Afterwards, MOL Inspector Martin said he had issued a summons to Jason Nault, which had informed Nault that he was being charged with contravening s. 28(2) (

b) of the O.H.S.A. , for being a worker who had used or operated machinery in an unsafe manner. [ 37 ] In addition, after he spoke with Jason Nault, MOL Inspector Martin said he then spoke with Antonio Dibartolomeo. At that time, MOL Inspector Martin said Dibartolomeo had given him the name of a witness. MOL Inspector Martin said he then spoke with that witness (Mohammed Andrees) on January 5, 2017. Subsequent to speaking with that witness and then after speaking with Dibartolomeo again, MOL Inspector Martin said that he then charged Dibartolomeo with contravening s. 28(2) (

b) of the O.H.S.A. , as a worker who had used or operated machinery in an unsafe manner. [ 38 ] Moreover, MOL Inspector Martin explained that in the forklift manual and in the forklift training given to forklift drivers or operators, forklift operators are required to focus on the task at hand and not to be distracted by the use of a cellphone while the forklift is on the floor of the warehouse.

[ 39 ] In addition, MOL Inspector Martin said there are areas in the plant where forklifts can be parked when they are not being operated. Furthermore, MOL Inspector Martin said he had observed that the area where the forklifts were supposed to be operating in had been designated as a work area. [ 40 ] Also, during his investigation, MOL Inspector Martin said he had observed at the entrance to the warehouse area of the plant a T.V. screen and posted signage.

He further said that the T.V. screen provides continuous and rotating safety reminders to workers as they enter the workplace, especially that the use of personal cellphones or personal mobile devices is strictly prohibited in the warehouse and shipping area. Moreover, MOL Inspector Martin said that the workers at the Coca-Cola plant are supposed to keep their cellphones or personal mobile communication devices in their personal lockers or in their personal motor vehicles.

He also said he took a photograph of that signage (see Exhibit “4”). [ 41 ] In addition, when asked about the difference in the potential hazard between not wearing a seatbelt while driving a forklift versus using a cellphone when operating a forklift, MOL Inspector Martin answered that using a cellphone while operating a forklift is a high hazard due to workers being struck by a forklift.

But, in respect to not wearing a seatbelt while driving a forklift he said it is not considered to be a high hazard. [ 42 ] Also when asked if he saw any areas for forklifts to park, MOL Inspector Martin said he had observed that there were such areas for parking forklifts that are located adjacent to the warehouse area, at the edges of the production area. (iii) Jason Nault, the first defendant [ 43 ] Jason Nault testified that there was no need for anyone to honk at him, since he had been parked at the end of a row.

He also said he had taken photographs of himself parked with his forklift at the end of “Row Q” on December 22, 2016. In addition, he also said he had taken a photograph of himself holding a scanner with an illuminated screen, which he says could have been mistaken by Joe Hunt as a cellphone.

These photographs were entered as Exhibit “5” (a photograph of Jason Nault holding a scanner showing an illuminated screen), Exhibit “6” (a photograph of Jason Nault holding a cellphone showing an illuminated screen), and Exhibit “7” (a photograph of a close-up of a scanner). [ 44 ] In addition, Jason Nault said that when he had been asked by MOL Inspector Martin if he had been on his cellphone, Jason said he had replied that he had used his cellphone to watch the time, since there were no clocks on the floor and he needed to know when to take his breaks.

He also said he needed to use his cellphone as a calculator to calculate skid count, so that he would be able to determine where to place product. [ 45 ] But more importantly, Jason Nault said that he was not using his forklift, nor operating a piece of machinery when he would have been using his cellphone to watch the time or when he used it to do calculations for work purposes.

In addition, he also said that he had not been blocking any aisle when he had been operating his forklift, since he had been in a row and considering that Joe Hunt in his first statement and in his second statement had actually put him in two different places.

Furthermore, Jason Nault said that when he had spoken to the Ministry inspector, Nault did not know about the complaint that had been filed by Joe Hunt. [ 46 ] In addition, Jason Nault said that he admits that he did have his cellphone with him on the floor and that is what he had already been disciplined for internally, in which he had been given a written warning that has been placed in his file. Moreover, Nault said he had already been disciplined for having a cellphone on the floor before the inspector had appeared on December 22, 2016.

Furthermore, Nault said that on the date in question there had been no clocks in the building that he was working in, but today there are now clocks that have been put up in that building. [ 47 ] Furthermore, Jason Nault said that he knows that the use of a cellphone is contrary to company policy because of the potential distraction that using a cellphone can cause, and that he has seen the company policy against cellphone use and that there is a T.V. screen which shows reminders of company policy. [ 48 ] However, although he admits to using his cellphone, Jason Nault testified that he had not been driving or operating a forklift when using his cellphone and that he had only been using his cellphone for work-related issues and not for personal use. (iv) Antonio Dibartolomeo, the second defendant

[ 49 ] Antonio Dibartolomeo testified that he has been working for 39 years for the Coca-Cola company in Canada. He also said that he did not use a cellphone and that he had actually gotten off of his forklift and had presented his cellphone to someone else, who had been the person who had actually been using Dibartolomeo’s cellphone. Dibartolomeo also said that his forklift is electric and that he had turned off the key to it.

In addition, Dibartolomeo said he did have his cellphone with him and that he had someone help him download an application on his cellphone that had been sent to him. [ 50 ] Furthermore, Dibartolomeo said that he had been moving 2 skids of product with his forklift and had gone into a row and did not block Joe Hunt’s way.

He also said that he did not recall seeing Joe Hunt that day. [ 51 ] In addition, Dibartolomeo said he had actually gotten off of his forklift and had handed his cellphone to Mohammed Andrees, who had been operating a single-load type of forklift (and not a double-type) and had asked Andrees to download an application for him, and as such, had not been the person who had been using Dibartolomeo’s cellphone. Dibartolomeo also said that this exchange had occurred at about 8:13 a.m. He further said the cellphone was not turned on and was being used by another person to download an application.

In addition, Dibartolomeo said that Mohammad Andrees had downloaded the “What’s App” application for him and that when he had handed the cellphone to Mohammad Andrees, Dibartolomeo said that both of them had gotten off their respective forklifts.

As such, Dibartolomeo said he had gotten off his forklift and had not been on his forklift when he handed the cellphone to Mohammad Andrees, and therefore, had not been operating his forklift when the cellphone was being used by Andrees to download the “What’s App” application. [ 52 ] Moreover, Dibartolomeo said that the person who had been hit by a forklift in the plant on that earlier occasion had been someone from management. [ 53 ] As well, Dibartolomeo said that he would follow company policy, but will always have his cellphone with him regardless, if his mother, who has Alzheimer’s, calls him because she comes first.

He also said that he is the prime caregiver for his mother and had been told so by his lawyer. 4. ISSUES [ 54 ] The following are issues that have to be resolved in order to determine whether the prosecution has proven the charges respectively laid against the two defendants:

(1) Has the prosecution proven beyond a reasonable doubt that both defendants have respectively committed the actus reus of the offence set out under s. 28(2) (b)?

(2) Has the prosecution proven that both defendants had been holding or using cellphones in the warehouse area of the Coca-Cola industrial establishment?

(3) If the defendants had been holding or using cellphones in the warehouse area of the Coca Cola industrial establishment, were the defendants at the same time also operating their respective forklifts within the meaning of s. 28(2) (

b) of the O.H.S.A. when holding or using their cellphones?

(4) Have the charges laid against the defendants under a

Part I Certificate of Offence been particularized to “ worker operate equipment in a manner that may endanger himself or another worker”, or have the charges simply been described by the “short-form wording” for the s. 28(2)(

b) offence, which would then include all the circumstances set out in s. 28(2)(

b) for which the particular statutory provision can be contravened?

(5) Does the prosecution have to prove beyond a reasonable doubt that the defendants were actually operating their respective forklifts while holding or using cellphones as an element of the actus reus of the offence set out under s. 28(2) (

b) of the O.H.S.A. or is simply holding or using a cellphone in the warehouse area when company policy prohibits the presence of cellphones in the warehouse area

while both defendants had care and control of a turned-off and stationary forklift in the warehouse area, proof beyond a reasonable doubt that the actus reus of the offence had been committed by both defendants?

(6) If the prosecution has proven that the defendants have respectively committed the actus reus of the s. 28(2) (

b) offence beyond a reasonable doubt, then have the defendants establish the defence of due diligence on a balance of probabilities in order to be acquitted of committing their respective charges? 5.

ANALYSIS [ 55 ] To start with, the prosecution has proven beyond a reasonable doubt that the Coca- Cola Production and Distribution Centre located at 15 Westcreek Boulevard, in the City of Brampton is a workplace and an industrial establishment for the purposes of the O.H.S.A. , as well that both defendants are workers employed by Coca-Cola Refreshments Canada on December 19, 2016, and that both of them had been assigned and working as forklift operators on that day in the warehouse area of the 15 Westcreek Boulevard plant . [ 56 ] For the defendants’ respective charges, the prosecution contends that both defendants had been using their cellphones while operating forklifts at approximately 8:05 a.m. on December 19, 2016, in the warehouse area of the Coca-Cola plant and that when the defendants were engaged in using their respective cellphones while operating a forklift, they would be distracted as to what is going on around them, which could then endanger the respective defendants as well as other workers in their vicinity.

As such, the prosecution submits that the defendants have respectively contravened s. 28(2) (

b) of the O.H.S.A. by being workers who used or operated equipment, machines, or devices, or things, or worked in a manner that may endanger the worker or others. Furthermore, the prosecution submits that in order to properly interpret whether the defendants’ actions on December 19th had contravened s. 28(2) (b), then the provision has to be given a broad and purposive

interpretation to achieve the goal of the legislation of ensuring worker safety and safe work environments.

Accordingly, the prosecution submits that in the circumstances, using a cellphone when either defendant had been sitting on a forklift which is stationary and turned off, or even while one of the defendants is standing beside the forklift when the defendant still has care and control of the forklift that is stopped in an aisle or a row in the warehouse area of the plant where workers would be working or where other forklifts would have to travel on, would comprise an offence under s. 28(2) (b). [ 57 ] Contrary to the prosecution’s submissions, the defendant Jason Nault submits that he should not be found guilty of violating s. 28(2) (b), since he had not been operating his forklift while using a cellphone because the forklift that he was sitting on had been stationary and turned off and situated at the end of a row, which had been out of the way of any pedestrian or forklift traffic, and therefore, would not have posed a hazard to anyone.

Moreover, Nault also contends that he had not been using his cellphone for personal use, but for work purposes as a clock, in order to know when to take his breaks, and also as a calculator, in order to help him determine where to store product in the warehouse that was coming from the production line.

Likewise, the defendant Antonio Dibartolomeo contends that he had not been operating a forklift nor using a cellphone, since Dibartolomeo submits that he had not been sitting on his forklift, but contends that he had actually stepped off his forklift, which had been stationary and turned off, and that when he had been standing on the warehouse floor beside his forklift, Dibartolomeo had then handed his cellphone to another worker, named Mohammad Andrees, who was the person who had been actually using Dibartolomeo’s cellphone to download an application for Dibartolomeo. [ 58 ] Ergo, the question that has to be determined is whether the prosecution has proven beyond a reasonable doubt that both defendants had been respectively holding and using a cellphone while they had been using or operating their respective forklifts within the meaning of s. 28(2) (

b) of the O.H.S.A. in the warehouse area of the Coca-Cola plant on the day and time in question. If the prosecution meets its legal or persuasive burden, then both defendants will have committed the actus reus of the s. 28(2) (

b) offence of being a worker that had used or operated equipment, a machine, a device or a thing or had worked in a manner that may endanger himself or any other worker. And, if the prosecution does fulfill its burden in proving that the defendants had committed the actus reus of the offence beyond a reasonable doubt, then the defendants will have to establish a defence of due diligence on a balance of probabilities to avoid being convicted of contravening s. 28(2)(

b) of the O.H.S.A. (

A) FIRST STAGE: HAS THE PROSECUTION PROVEN BEYOND A REASONABLE DOUBT THAT THE DEFENDANTS HAVE RESPECTIVELY COMMITTED THE ACTUS REUS OF THE OFFENCE OF BEING A WORKER WHO HAD OPERATED EQUIPMENT IN A MANNER THAT MAY ENDANGER HIMSELF OR ANOTHER WORKER? [ 59 ] The offence for which the defendants had both been charged with of “worker operating equipment in a manner that may endanger

himself or another worker”, contrary to s. 28(2)(

b) of the O.H.S.A., is a strict liability offence, since the specific provision did notcontain any expressed or implied wording that would make the offence a mens rea or an absolute liability offence. As such, in order todetermine whether both defendants are guilty respectively of committing that offence beyond a reasonable doubt, a two-stage analysis isrequired. For the first stage, the prosecution has the legal or persuasive burden to prove beyond a reasonable doubt that both defendantshave respectively committed the actus reus of the offence. If the Crown meets its burden, then to avoid being convicted of committingthe s. 28(2)(

b) offence, the onus shifts to the defendants to prove on a balance of probabilities that they had respectively taken allreasonable steps in the circumstances to avoid the particular event or that they had reasonably believed in a mistaken set of facts, if true,would render their respective acts or omissions innocent: R. v. Sault Ste. Marie (1978), (SCC), 40 C.C.C. (2d) 353(S.C.C.).

(1) WERE BOTH DEFENDANTS HOLDING AND USING A CELLPHONE IN THE WAREHOUSE AREA OF THE COCA-COLA PLANT ON DECEMBER 19, 2016? [60] Joe Hunt, who was also driving a forklift in the warehouse area of the Coca-Cola plant, had testified that he had observed bothdefendants, Jason Nault and Antonio Dibartolomeo, holding and using cellphones on December 19, 2016, at approximately 8:05 a.m.,while both defendants had been sitting on their respective forklifts and while their forklifts had been stationary either in a row or in anaisle in the warehouse area, causing Joe Hunt to honk his horn at the defendants, since the defendants’ forklifts had been blocking Hunt’spath and which then forced Hunt to drive his own forklift around the defendants’ forklifts by a different route so that Hunt could get tohis destination.

In addition, Hunt testified that Nault’s forklift had been turned on at the time he had observed Nault holding and using acellphone. [61] However, Jason Nault testified that on December 19, 2016, he had been using a scanner and stationed at the end of a row and notimpeding traffic when Joe Hunt had observed him supposedly holding a cellphone, and that Nault only had his personal cellphone withhim in the warehouse area for work purposes, as there were no clocks at the time posted in the warehouse and that he needed to knowwhen to take his breaks.

In addition, Jason Nault testified that he had also needed the calculator on his cellphone so he could calculatehow much product needed to be stored in a specific area. Furthermore, Jason Nault said that he had not been operating his forklift at thetime Joe Hunt had observed him, since Nault’s forklift had been stopped at the end of a row and that Nault’s forklift had been turned offat that time. [62] As for Antonio Dibartolomeo’s testimony on what had occurred on December 19, 2016, Dibartolomeo stated that Joe Hunt hadbeen incorrect with what he had observed.

In fact, Dibartolomeo stated that he had not been sitting on his stopped and turned-off forklift,but had been actually standing on the warehouse floor and had been off of his forklift when he had handed his personal cellphone toMohammad Andrees, who was the one who had actually been using Dibartolomeo’s personal cellphone to download an app onDibartolomeo’s cellphone, for Dibartolomeo to use later.

In addition, Dibartolomeo states that he needs his personal cellphone with himat all times, since his mother has been diagnosed with Alzheimer’s, and that his lawyer had advised him that Dibartolomeo is hismother’s primary caregiver. [63] However, there is no dispute about whether the defendants had in fact had their respective cellphones with them in the productionand warehouse areas of the Coca-Cola plant on December 19, 2016, but rather the dispute is on whether either of the defendants had beenusing their respective cellphones while sitting on their respective forklifts; and that if the defendants were indeed using their cellphones,then whether either of the defendants had been actually operating their forklifts within the meaning of s. 28(2)(

b) while using theirrespective cellphones; and if either defendant had been using their cellphones while operating their forklifts, then whether their use ofcellphones while operating their respective forklifts could have endangered themselves or another worker. (

a) The S. 28(2)(

b) Public Welfare Provision Has To Be Interpreted Broadly To Achieve The Purpose Of The Legislation [64] The defendants’ respective s. 28(2)(

b) charges are an alleged contravention of the O.H.S.A., which is public welfare legislationthat endeavours to establish minimum safety standards in the workplace for protecting workers. [65] In order to ensure safe workplaces for workers, the O.H.S.A. provides for a hierarchy of responsibilities to ensure that workplacesare indeed safe for workers, that work is being conducted safely, and that workplace hazards are minimized, by placing duties andobligations on constructors, employers, supervisors, and workers to follow and comply with. As such, both defendants by virtue of s.28(2)(

b) have a legal obligation and a responsibility as workers, to not use or operate any equipment, machine, device or thing, or work,in a manner that may endanger himself, herself or any other worker; while Joe Hunt, as a worker, had the legal obligation under s.28(1)(

d) to report to his or her employer or supervisor any contravention of the O.H.S.A., including any of its regulations, or theexistence of any hazard of which he or she knows about [emphasis is mine below]:

Duties of workers 28(1) A worker shall , (

a) work in compliance with the provisions of this Act and the regulations; (

b) use or wear the equipment, protective devices or clothing that the worker’s employer requires to be used or worn; (

c) report to his or her employer or supervisor the absence of or defect in any equipment or protective device of which the worker is aware and which may endanger himself, herself or another worker; and (

d) report to his or her employer or supervisor any contravention of this Act or the regulations or the existence of any hazard of which he or she knows . Idem

(2) No worker shall , (

a) remove or make ineffective any protective device required by the regulations or by his or her employer, without providing an adequate temporary protective device and when the need for removing or making ineffective the protective device has ceased, the protective device shall be replaced immediately; (

b) use or operate any equipment, machine, device or thing or work in a manner that may endanger himself, herself or any other worker ; or (

c) engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct. Consent to medical surveillance

(3) A worker is not required to participate in a prescribed medical surveillance program unless the worker consents to do so. [ 66 ] Moreover, in R. v. Canada Brick Ltd. , [2005] O.J. No. 2978 (Ont. S.C.) , at para. 122 , Hill J. succinctly identified the broad purpose underlying the O.H.S.A. , which is to provide a reasonable level of protection for workers in the workplace by requiring employers to conform to certain minimum safety standards in the workplace, and that in order to achieve that goal, Justice Hill also emphasized that the O.H.S.A. , which is a remedial public welfare statute, should be interpreted in a manner consistent with that broad purpose and not to employ an

interpretation which would be overly narrow and technical [ emphasis is mine below ]: The philosophy of the Occupational Health and Safety Act , as a regulatory scheme, provides important context to this appeal: (1) the Act is a remedial public welfare statute whose broad purpose is to provide a reasonable level of protection for workers by requiring employers to conform to certain minimum safety standards in the workplace .

(2) having regard to its remedial purpose of protecting worker health and safety, the legislation is not to be given a narrow technicalinterpretation but should be interpreted in a manner consistent with its broad purpose. See R. v. Brampton Brick Ltd., [2004] O.J. No. 3025 (QL) (C.A.), at para. 22; R. v. Timminco Ltd. (2001), (ON CA),153 C.C.C. (3d) 521 (Ont. C.A.), at p. 528; R. v. The Corporation of the City of Hamilton (2002), (ON CA), 58 O.R.(3d) 37 (C.A.), at pp. 43-4; R. v. Cancoil Thermal Corp. and Parkinson (1986), (ON CA), 27 C.C.C. (3d) 295 (Ont.C.A.), at p. 298; R. v. Ellis-Don Ltd.; R. v.

Morra; R. v. Indal Furniture System; R. v. Helmer Pederson Construction Ltd. (1991), (ON CA), 61 C.C.C. (3d) 423 (Ont. C.A.), at pp. 430, 436, 439, 449. At page 439 of the Ellis-Don case, Carthy J.A. (indissent in the result) stated: ... the pressing and substantial objective of the Act, generally, [is] to prevent accidents in the work place ...

The Act is directly focused onaccident avoidance through measures taken in advance of mishaps and because it applies to a segment of commercial society where thereis necessarily a dependence upon profits, measures are needed to assure that workers' safety is not forgotten. The Act is also directed toindustries that are prone to a wide variety of dangers [67] And, even though public welfare legislation, such as the O.H.S.A., is to be interpreted liberally in a manner that will give effect toits broad purpose and objective, while narrow or technical

interpretations that would interfere with or frustrate the attainment of thelegislature's public welfare objectives are to be avoided, Sharpe J.A. in Ontario (Ministry of Labour) v. Hamilton (City) (2002), (ON CA), 58 O.R. (3d) 37 (Ont. C.A.), at paras. 16 and 20, clarified that this generous approach which is to be used forthe

interpretation of public welfare statutes, also requires striking a balance to arrive at an

interpretation that would promote the largerobjects of the legislation and at the same time respect the procedural rights of the accused [emphasis is mine below]: The OHSA is a remedial public welfare statute 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 topromote public health and safety is to be generously interpreted in a manner that is in keeping with the purpose and objectives of thelegislative scheme. Narrow or technical

interpretations that would interfere with or frustrate the attainment of the legislature's publicwelfare objectives are to be avoided. … It remains true, of course, that penal legislation, even of the public welfare variety, must also be interpreted in a manner consistent withthe procedural rights of the accused. The accused is entitled to have full and fair notice of the charges and to make full answer anddefense to those charges. In the end, a balance must be struck to arrive at an

interpretation that promotes the larger objects of thelegislation and at the same time respects the procedural rights of the accused. [68] Furthermore, in Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75 , [2013] O.J. No. 520, the Court of Appeal forOntario, at paras. 24, 26, and 27, had emphasized that interpreting legislation broadly to accord with the purpose of the legislation doesnot on the other hand call for a limitless

interpretation of its provisions, which could extend the reach of the legislation far beyond whatwas intended by the legislature [emphasis is mine below]: Public welfare legislation is often drafted in very broad, general terms, precisely because it is remedial and designed to promote publicsafety and to prevent harm in a wide variety of circumstances. For that reason, such legislation is to be interpreted liberally in a mannerthat will give effect to its broad purpose and objective: R. v. Timminco Ltd. (2001), (ON CA), 54 O.R. (3d) 21 (C.A.),at para. 22. … This generous approach to the

interpretation of public welfare statutes does not call for a limitless

interpretation of their provisions,however. One of the problems with what is otherwise an understandable approach to the

interpretation of public welfare legislation is that broad

language, taken at face value, can sometimes lead to the adoption of overly broad

definitions . This can extend the reach of the legislation far beyond what was intended by the legislature and afford the regulating ministry a greatly expanded mandate far beyond what is needed to give effect to the purposes of the legislation . (

b) Had Both Defendants Been Using Their Respective Cellphones In The Warehouse Area Of The Coca-Cola Plant? [ 69 ] Although Joe Hunt’s testimony had some inconsistences in respect to whether he had observed the respective defendants in a “row” or an “aisle” in the warehouse and in misidentifying the particular identification number for that specific row or aisle, Joe Hunt’s testimony is nevertheless credible and consistent in regards to having observed both defendants holding and using cellphones while seated on their forklifts.

Joe Hunt’s testimony is also consistent with the undisputed fact that both defendants had their personal cellphones on their respective persons when they were in the warehouse area of the Coca-Cola plant on December 19, 2016, at approximately 8:05 a.m., which makes the presence of the defendants’ cellphones in the warehouse area increase the possibility and likelihood that both defendants had indeed used their cellphones in the warehouse area of the plant. [ 70 ] Furthermore, Joe Hunt had been an employee member of the Joint Health and Safety Committee at another Coca-Cola plant, and because of that responsibility and the oath he had taken when he had been on that Committee, Hunt said that he had from that point on been concerned about workers working safely and complying with the company’s safety policy.

As a result, that experience on the Joint Health and Safety Committee, would have instilled in Joe Hunt the need for workers to comply with safe working processes and policies and would have also made Joe Hunt more attentive or attuned to noticing workers’ conduct that could endanger themselves or other workers. [ 71 ] In addition, the omnipresence of personal cellphones in society would make most people knowledgeable and experienced in observing when someone is actually engaged in holding and using a cellphone.

Moreover, Joe Hunt had observed both defendants respectively holding and using a cellphone from about 50 feet away, which would not have been too far a distance for Hunt to discern and identify the respective device being held by both defendants as a cellphone. As such, Joe Hunt would have had no difficulty in discerning and concluding whether Jason Nault had been using a company scanner to locate product or that he had been holding or using a cellphone, or whether Antonio Bartolomeo had been holding and using a cellphone.

Moreover, Joe Hunt, himself, had also been using a company scanner to locate product in the warehouse on the morning in question, which further supports Hunt’s testimony that Hunt had not been mistaken that Jason Nault had been actually using a cellphone instead of a scanner on December 19th. [ 72 ] But more significant, the defendants did not dispute the fact that they had indeed had their personal cellphones with them in the warehouse area on the date and time in question, which establishes that cellphones had been present and available inside the warehouse for the defendants to hold and utilize, and as such, supports Joe Hunt’s testimony that he had observed both defendants holding and using cellphones in the warehouse area of the Coca-Cola plant on the morning of December 19, 2016. (

i) Jason Nault contends he had been using his cellphone in the warehouse area for work purposes and not for personal use [ 73 ] In addition, considering that Joe Hunt had to also used a company scanner in his duties in locating product in the warehouse area to transport with his forklift, Joe Hunt had not been mistaken in whether Jason Nault had been using a cellphone or a company scanner when Joe Hunt had observed Jason Nault using an electronic device with an illuminated screen.

Moreover, the evidence indicates that the warehouse area was well-lit so that the distance of 50 feet at which Joe Hunt had said that he had been from the defendant, Jason Nault, when Hunt had observed Jason Nault holding and using a cellphone, is not too far a distance for Hunt to properly observe Nault holding a cellphone.

As such, Hunt’s testimony has not been undermined or discredited by Nault’s suggestion that Hunt could have been mistaken about the device that Nault had indeed been holding had not been a cellphone but a company scanner, so as to create a reasonable doubt as to what type of device that Joe Hunt had actually seen Jason Nault holding. (ii) Antonio Dibartolomeo contends he was not using his cellphone in the warehouse area, but that it had been another worker who had been actually using his cellphone [ 74 ] In respect to the defendant Antonio Dibartolomeo’s claim that he was not the one actually using Dibartolomeo’s cellphone in the warehouse area, but that Dibartolomeo had handed it over to another worker named Muhammad Andrees, who had been the person who had actually been using Dibartolomeo’s cellphone to download the “What’s App” application onto Dibartolomeo’s cellphone, would still nevertheless be the act of holding and using a cellphone or causing the use of a cellphone in the warehouse area of the plant.

[ 75 ] Moreover, Joe Hunt had testified that he had observed both the defendant Antonio Dibartolomeo and the other worker Mohammad Andrees seated on their respective forklifts and stopped adjacent to each other, and that the defendant Dibartolomeo while seated on a forklift had been holding and showing something on a cellphone to Mohammad Andrees. [ 76 ] And, even though Antonio Dibartolomeo had testified that he did not even see Joe Hunt in the warehouse that morning, Dibartolomeo still testified, in response to Joe Hunt’s testimony about having observed Dibartolomeo sitting on a forklift and holding and showing Mohammed Andrees something that was on the cellphone, that Dibartolomeo had not been sitting on his forklift but had been instead been standing beside his forklift when he had handed his cellphone off to Mohammed Andrees. [ 77 ] However, leaving aside the question of whether Antonio Dibartolomeo had been sitting on a forklift when Dibartolomeo had supposedly been holding and using a cellphone in the warehouse area, the question that needs to be decided first is whether Dibartolomeo in simply handing over a cellphone to Mohammed Andrees would be evidence of using or operating any equipment, machine, device or thing or work in a manner that may endanger himself, herself or any other worker under s. 28(2)(b).

Hence, because s. 28(2) (

b) is part of a public welfare statute whose purpose is to protect workers in a workplace and to ensure safe workplaces for workers, then to resolve this question on whether Dibartolomeo had been using or operating any equipment, machine, device or thing, or work in a manner that may endanger himself or any other worker when Dibartolomeo had handed his cellphone to Mohammed Andrees, so that Andrees could download an app onto Dibartolomeo’s cellphone for Dibartolomeo to use, then the particular circumstances set out in s. 28(2) (

b) for which a worker can contravene the provision have to be interpreted broadly to accord with the purpose of the legislation. [ 78 ] Accordingly, based on the evidence that Dibartolomeo had been at some point holding a cellphone and that Dibartolomeo, in giving his cellphone to Andrees and directing or requesting Andrees to download an app for Dibartolomeo, had caused Mohammed Andrees to use Dibartolomeo’s cellphone in the warehouse area, then that particular circumstance would be evidence in respect to Mohammed Andrees being a worker using a device while operating a forklift in a manner that may endanger the worker or another worker, which is one of the circumstances prescribed in s. 28(2) (b). [ 79 ] In addition, Dibartolomeo holding and passing a cellphone to another worker so that the other worker can download an application onto Dibartolomeo’s cellphone in order that Dibartolomeo can use the application later, would be evidence of Dibartolomeo’s direct involvement in a worker using a cellphone in the warehouse area when cellphones are not permitted in the warehouse area.

Furthermore, in this scenario in which Mohammad Andrees would have spent a lengthier duration holding, looking at, and using Dibartolomeo’s cellphone than Dibartolomeo’s time in holding the cellphone, Dibartolomeo had still caused a worker to use a prohibited cellphone in the warehouse area when he had directed or asked Mohammad Andrees to download an application onto Dibartolomeo’s cellphone, and Dibartolomeo would have also caused both himself and Mohammad Andrees to be distracted about what was occurring immediately around them while both were looking at and using Dibartolomeo’s cellphone in the warehouse area of the Coca-Cola plant. [ 80 ] Therefore, in respect to the scenario in which Antonio Dibartolomeo had supposedly passed his cellphone to Mohammad Andrees, in order that Andrees would download an “app” onto Dibartolomeo’s cellphone for Dibartolomeo’s use, such scenario would also constitute Dibartolomeo holding and using a cellphone for the purposes of s. 28(2) (b).

Moreover, Dibartolomeo’s argument that it was not Dibartolomeo who had been actually using a cellphone, but that it had been Mohammad Andrees alone who had been using the cellphone is not a convincing argument, since it had been Dibartolomeo who had passed his cellphone to Mohammad Andrees and who had directed and caused Andrees to actively use Dibartolomeo’s cellphone, even though cellphones are not permitted in the warehouse area of the plant.

As such, in Dibartolomeo’s scenario, Dibartolomeo would have been purposely engaged in using a cellphone in conjunction with Mohammad Andrees in the warehouse area, as Dibartolomeo had been directly and sufficiently involved in handling his cellphone, instructing Mohammad Andrees to use his cellphone, and then permitting and causing Dibartolomeo’s cellphone to be used by a Mohammad Andrees in the warehouse area. (iii) Joe Hunt’s testimony is credible that both defendants had been holding and using a cellphone while seated on their respective forklifts [ 81 ] Now, because Joe Hunt’s detailed testimony had not been undermined in cross-examination, in respect to what he had observed of the defendants’ respective actions on December 19, 2016, at approximately 8:05 a.m. in the warehouse area of the Coca-Cola plant, then Joe Hunt’s observations that both defendants had been engaged in holding and using a cellphone while respectively seated on a forklift, is credible evidence. [ 82 ] Moreover, in regards to the defendants’ concern that Joe Hunt had incorrectly identified the “numbering and lettering” assigned for the row or aisle in which Hunt had observed the defendants respectively seated on their stopped forklifts while holding and using a

cellphone is not essential or critical in determining whether both defendants had contravened s. 28(2) (b), since identifying the actual assigned identification number for a row or an aisle is not an element of the offence. The essential elements of the offence that had to be proven by the prosecution involve the defendants’ actions in operating or using equipment in the warehouse area in a manner which could endanger the defendants or other workers.

Similarly, Hunt’s misidentification of a pathway in the warehouse of the plant simply as an “aisle” instead of a “row” is also not sufficient to undermine Hunt’s credibility in respect to the same question of whether both defendants had been respectively operating or using equipment in the warehouse area in a manner which could endanger the worker or other workers.

Furthermore, even though these errors could negatively affect Joe Hunt’s credibility, Hunt had explained that he does not normally work in the job that he had been assigned and doing on the day and morning in question, so that Hunt misidentifying a row as an aisle or in misidentifying the actual row number assigned to that row is not a contradiction or an error that would undermine Hunt’s credibility or one that would raise a reasonable doubt as to whether Hunt had actually observed both defendants sitting on a forklift and holding and using a cellphone in the warehouse area of the plant on December 19, 2016, at approximately 8:05 a.m. [ 83 ] In addition, Joe Hunt had also testified to having used a company scanner on that same morning to locate a pallet of product to load onto a transport truck, and as such, would not have been erroneous or mistaken about having observed Jason Nault holding a cellphone instead of a company scanner.

In addition, Joe Hunt had at one time been an employee member of the Joint Health and Safety Committee at a different Coca-Cola plant, and because of this previous role, had taken an oath to ensure and uphold safety in the Coca- Cola workplace, and as such, Hunt would have been very much cognizant of safety and the company policy on the prohibited use of cellphones in the production and warehouse areas.

Moreover, because of the omnipresence of cellphones in society and the likelihood that Hunt has seen people holding and using a cellphone thousands of times in virtually every setting in everyday life, it would not be unusual or difficult for Hunt to recognize when or whether someone is actually holding and using a cellphone.

In addition, when Joe Hunt had made his observations of the defendants respectively holding and using a cellphone, Hunt had made these observations from a distance of approximately 50 feet, which is not a distance that would have been too far away in a well-lit warehouse to accurately or reasonably see whether someone had been actually holding and using a cellphone. [ 84 ] In addition, the defendants had raised the question of the inconsistencies or contradictions between the written incident report dated December 22, 2016, in which part of the contained statement had been in Joe Hunt’s handwriting, and the typed “Will State” document dated October 10, 2017, that had been prepared by MOL Inspector Neil Martin and signed by both MOL Inspector Martin and Joe Hunt.

A finding that Joe Hunt’s testimony had contradicted both of these two documents cannot be made, since a “Will Say” is not an actual out-of-court statement prepared or made by Hunt and is only a

summary of the testimony that Hunt could potentially give in the trial. However, the incident report which had been partly written by Joe Hunt is a statement that could be used to contradict Hunt’s testimony at trial. However, the inconsistencies between Hunt’s testimony at trial and the December 22nd hand-written statement were only in respect to the actual identification number that had been assigned to a row in the warehouse and in Hunt’s testimony that he had observed the defendants in an “aisle” instead of a “row”, which are not material or crucial elements of the s. 28(2) (

b) offence, nor are they sufficiently significant to undermine Hunt’s credibility. [ 85 ] Ergo, based on Joe Hunt’s credible testimony the prosecution has proven beyond a reasonable doubt that both defendants had been holding and using a cellphone while seated on their respective forklifts in the warehouse area of the Coca-Cola plant on December 19, 2016, at approximately 8:05 a.m.

(2) WERE BOTH DEFENDANTS “OPERATING” THEIR RESPECTIVE FORKLIFTS WHILE USING A CELLPHONE? [ 86 ] Furthermore, even though Joe Hunt’s testimony is credible and evidence that proves beyond a reasonable doubt that both defendants had been holding and using a cellphone while seated respectively on forklifts in the warehouse area of the Coca-Cola plant, the defendants’ contentions that there were not operating a forklift because their respective forklifts had been stopped and turned off still needs to be considered to determine if they had both contravened s. 28(2) (b). [ 87 ] Both defendants had contended that even if they had been using a cellphone in the warehouse area of the Coca-Cola plant, neither had been actually engaged in “operating” a forklift, since their respective forklifts had been stationary and turned off, and therefore neither were “operating equipment” in a manner that could endanger themselves or other workers. [ 88 ] Moreover, the defendant, Antonio Dibartolomeo, contends that he was not the person using his cellphone, nor had he been sitting on his forklift, but had actually gotten off his forklift, which had been stopped and turned off, and had been standing on the warehouse floor before he had handed his cellphone over to Mohammed Andrees to download an application onto his cellphone.

In addition, Dibartolomeo said he did not even see Joe Hunt on the morning in question. However, this may be due to the possibility that Dibartolomeo had indeed been distracted by his involvement in providing Mohammed Andrees a cellphone in the warehouse to download an application for Dibartolomeo and his personal involvement and attention in directing and causing Mohammed Andrees to use Dibartolomeo’s cellphone.

[ 89 ] Furthermore, in determining whether both defendants are guilty of committing an offe

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