R. v. Della Valle, 2011 NSPC 67

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Della Valle, 2011 NSPC 67 Date : 14 September 2011 Docket : 2202580 Registry : Sydney Between: HER MAJESTY THE QUEEN vs James Edward Della Valle LIBRARY HEADING . Charge : s. 17 Occupational Health and Safety Act of Nova Scotia Heard : June 20 and 21 st , and September 14, 2011 at Sydney, N.S Judge : A. Peter Ross, P.C.J. Counse l: Mr. Peter Craig, Crown Attorney Mr. Tony Mozvik, Defense Attorney

Summary Following concerns raised by an employee, testing was conducted on vermiculite insulation in attics of housing units owned and maintained by the Cape Breton Island Housing Authority. The Defendant, who was the Occupational Health and Safety Coordinator of CBIHA, came into possession of a written report which confirmed the presence of asbestos in this material. The report outlined steps which ought to be taken to protect both maintenance workers and occupants. The Defendant gave a copy to and discussed the report with two maintenance supervisors. He thereafter assumed the concerns would be acted on.

Six months later the matter came to the attention of the CBIHA Director. In the interim, no steps had been taken within the organization to address the concerns outlined in the report. Remediation was subsequently undertaken. The Defendant was charged under the Occupational Health and Safety Act, s.17, with failing to take every reasonable precaution in the circumstances to protect the health and safety of employees and of other persons at or near the workplace. He was found guilty after trial.

The tenants were deemed to be “other persons” within the meaning of s.17 Steps which the Defendant ought to have taken included bringing the matter to the attention of the Joint Occupational Health and Safety Committee, bringing the report to the attention of the Director, and making active inquiries of the two maintenance supervisors as to any follow-up. The Defendant’s job description and the legislative framework were contextual factors. It is not necessary that the Crown prove, by expert medical evidence, actual risk to health, nor any actual resulting harm.

The meaning of endangerment, and what gives rise to a duty to act, are discussed.

Proof of the actus reus of general duty offences such as s.17, and the implications of such proof on the defense of due diligence, are discussed. IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Della Valle, 2011 NSPC 67 Date : 14 September 2011 Docket : 2202580 Registry : Sydney Between: HER MAJESTY THE QUEEN vs James Edward Della Valle DECISION . Charge : s. 17 Occupational Health and Safety Act of Nova Scotia Heard : June 20 and 21 st , and September 14, 2011 at Sydney, N.S Judge : A. Peter Ross, P.C.J. Counse l: Mr. Peter Craig, Crown Attorney Mr.

Tony Mozvik, Defense Attorney REASONS FOR DECISION Introduction [ 1 ] Mr. Della Valle was charged on July 16, 2010 with an offence under the Occupational Health and Safety Act of Nova Scotia which is alleged to have occurred between October 25 th , 2005 and April 6, 2006. The Information charges that “as an employee of the Cape Breton Island Housing authority he failed to take every reasonable precaution in the circumstances to protect the employee’s own safety and that of other persons at or near the workplace contrary to s.17 of the Occupational Health and Safety Act”

[ 2 ] Mr. Della Valle is one of three persons charged as a result of the discovery of asbestos-containing vermiculite insulation in certain rental units of the Cape Breton Island Housing Authority in 2006. Mr. Della Valle pled not guilty and the matter eventually went to trial in this court in June of 2011. [ 3 ] I have concluded that Mr.

Della Valle is guilty of the offence and will set out reasons for this decision below. [ 4 ] S. 17 states that e very employee, while at work, shall take every reasonable precaution in the circumstances to protect the employee's own health and safety and that of other persons at or near the workplace.

Crown describes this as a “general duty provision” made necessary in regulatory legislation by the fact that the regulators cannot foresee every possible contingency. [ 5 ] Although the duty to act arises from the defendant’s employment with the CBIHA, the duty he is alleged to have breached was owed not only to other employees or workers, but in large measure to tenants in various housing units owned and maintained by CBIHA. This case is thus largely concerned with the possible risk to those “other persons at or near the workplace”.

As such the case is different from most OHS violations which come before the courts. [ 6 ] Specifically, the duty arose when Mr. Della Valle, who was employed with CBIHA as Occupational Health and Safety Coordinator, became aware of the presence of asbestos-laden vermiculite insulation in a number of housing units operated by CBIHA.

It is alleged that the measures he took were inadequate – i.e. that he ought to have taken further precautions to protect the workers and tenants from the health risks apparently presented by this material. [ 7 ] Responsibility for health and safety at the workplace is diffuse in the sense that no one person bears it alone. The OHS Act attempts to ensure that systems are in place to monitor and address issues of health and safety. Others besides Mr. Della Valle have been charged with failing to discharge their s.17 duty. It is clear that any failings do not devolve to this defendant alone.

At the same time, responsibility, even for systemic issues, must at some point rest on individual shoulders. The court’s task is to consider what that responsibility entailed (in the particular circumstances of this case) and then to determine whether that responsibility was exercised as the law required. The case is confined to Mr.

Della Valle’s role; is not an inquiry into the broader aspects of this highly publicized matter nor is this an adjudication on the responsibility of others who were charged. [ 8 ] I should also say at the outset that although the health concerns around asbestos-containing materials are central to an understanding of the case, the trial is not meant to be a verdict on those concerns. Nor should it be viewed as a determination of the actual health implications (if any) for tenants and workers in the subject premises.

Rather, the case is about the apparent risk to health and safety which emerged from the information at hand, and what actions a reasonable and prudent person in the defendant’s position, possessed with such knowledge, ought to have undertaken. Facts [ 9 ] I will reproduce an Agreed Statement of Facts submitted by Crown and Defense. The defendant’s statement to investigators from the Department of Labour was also introduced into evidence.

These were supplemented by testimony from Darrell McNeil, David Muggah, Cyril Leudey and the defendant (all of whom are mentioned in the agreed statement) and also by testimony from Joan McKeough who was Director of CBIHA at the relevant time. In addition an Exhibit Book of some 21 documents was tendered. It contains various internal memos and correspondence, job descriptions, safety policies, handling practices for asbestos, etc. I will reference these as needed. [ 10 ] Agreed Statement of Facts 1.

In August or September, 2005, Todd Marsman and Tom Ellsworth, Cape Breton Island Housing Authority maintenance employees, were working at #3 Rose Terrace in Sydney. Ellsworth noted some insulation material falling on him from out of the ceiling. Marsman recognized it as a potential health hazard from a TV program he recently watched which reported the insulation often contained asbestos. Marsman immediately notified his supervisor, Darrell McNeil, of his concerns. At McNeil’s request, Marsman collected a sample and gave it to him for testing, placing it in a clear plastic zip-loc bag. 2.

On or about Oct. 4, 2005, Jamie Della Valle, CBIHA Health and Safety Coordinator, was in McNeil’s office and saw the sample and inquired about it. McNeil advised him that it was to be tested and asked Della Valle if he would take it to David Muggah, Atlantic Indoor Air Audit Co., for that purpose. Della Valle did so. 3. On or about 25 Oct. 2005, David Muggah, Atlantic Indoor Air Audit Co., advised Della Valle that the analysis results had been received.

In his cautioned statement to the investigators, Della Valle provided the following information: a. that Muggah advised him that the sample did in fact contain asbestos; b. that Muggah advised him of the health hazards associated and precautions to be taken with vermiculite insulation containing asbestos;

c. that Muggah asked where the sample had come from and inquired as to the construction of the unit; d. that Muggah advised him that the employees should be notified regarding the presence of the asbestos; e. that Muggah advised him that the perimeter of the ceiling (where it abuts the unit’s concrete walls) should be sealed; f. that Muggah advised him that the attic hatches should be locked; and g. that Muggah advised him that he (Muggah) had vermiculite insulation in his own home. 4. On or about October 26, 2005, Della Valle made a copy of the Atlantic Indoor Air Audit Co.

Report and hand-delivered it to McNeil at his office.

Della Valle further advised in his statement: a. that he explained the contents of the report to McNeil; b. that he relayed Muggah’s advice to McNeil that employees should be notified; that the ceilings would have to be sealed at their perimeter to prevent vermiculite from entering into the units’ living space; and that the attic hatches should be locked to limit access; c. that McNeil advised him that he (McNeil) would contact Cyril Leudey (Department of Community Services) and would advise the employees; and d. that McNeil advised him that he (Della Valle) should also provide Todd Routledge with a copy of the Report. (Routledge is another maintenance supervisor responsible for housing units in another district of Sydney that are identical in design and structure to the units supervised by McNeil). 5.

On or about October 26, 2005, Della Valle hand-delivered a copy of the Report to Routledge and relayed to him Muggah’s advice regarding notification of the employees, sealing the perimeter of the ceilings and locking the attic hatches. 6. Despite his role as Health and Safety Coordinator, Della Valle did not report these findings to the CBIHA Director who was his supervisor. He also failed to advise any other management personnel, the employees, contractor employees or the Joint Occupational Health and Safety Committee (JOHSC). In addition, he did not follow up to determine if the measures recommended by Mr.

Muggah were actually being implemented by Darrell McNeil and Todd Routledge. 7. Routledge and McNeil, having been duly informed of the asbestos risk, failed to advise their direct supervisor(s), members of the JOHSC, CBIHA employees or contractor employees, that a sample of vermiculite insulation taken from an attic in a housing unit contained asbestos. Neither of them took steps to ensure that the measures recommended by Muggah were implemented. 8. Darrell McNeil did contact Cyril Leudey, Coordinator Project Management, Department of Community Services, regarding this issue.

9. McNeil asserted that in contacting Cyril Leudey he had fulfilled his obligation under the Occupational Health and Safety Act . He indicated that he did not take any further action as he was awaiting directions from Leudey in that regard.

However, in his statement, Leudey noted the following: a. that there is no direct reporting relationship between himself and McNeil; b. that his role was to provide technical advice to McNeil which he did; c. that nothing was said or done that would cause McNeil to believe he should await further directions before taking the recommended measures to deal with the vermiculite; d. that McNeil would not require his approval prior to taking such measures; and e. that it was not his responsibility to ensure that CBIHA Health and Safety issues were addressed. 10.

On several occasions Todd Marsman, the employee who initially reported the concern to McNeil, inquired as to the status of the sample. McNeil responded with various different comments to the effect that the sample results had not been received. However, McNeil had the sample results since October 26, 2005. Despite Marsman’s repeated inquires, McNeil never disclosed the sample results to him. Marsman did not find out until April 2006 when the matter became pubic. 11. On several occasions, Tom Ellsworth also asked McNeil about the results of the sample taken by Marsman.

He also was never informed about the results of the analysis. 12. On Jan. 13, 2006, outside contractor Michael Gillis (Amblynn Electric) was advised by one of his employees, Allan MacEachern, that the Ashby Terraces might contain asbestos. On this same date, Michael Gillis sent an e-mail to both Routledge and McNeil, asking them to verify if this was true. A couple of days later, McNeil contacted Gillis and advised him that a sample had been sent away and nothing had come back yet, and the sample was lost and that he didn’t know if another would be taken.

Again, it is clear that McNeil had known of the test results since October 26, 2005. 13. Gillis persisted in his inquiries and on March 31 st , 2006, he was provided with a copy of the analysis Atlantic Indoor Air Audit Co. Report by Todd Routledge who informed him that he had just found it on his desk. 14. Gillis stated that between Oct. 2005 and Mar. 31, 2006, he definitely had employees working in CBIHA attics that had asbestos-containing vermiculite insulation. 15.

On April 3, 2006, the Occupational Health & Safety Division of the Department of Environment & Labour was contacted by Gillis reporting that his employees had been exposed to asbestos in various public housing units in the Sydney area managed by the Cape Breton Island Housing Authority (CBIHA). He reported that after repeated requests he was provided with a Report that confirmed the presence of asbestos. The investigation determined that both CBIHA and contracted employees worked in attic areas of

provincial public housing units between Oct. 2005 and the time of Gillis’ report to the Occupational Health and Safety Division on April 3, 2006. This was determined by examining work orders for affected properties during this time period.

The number of work orders generated for these properties number 515 and are as follows: a)...Ashby Terraces...227 work orders dispatched b)...Pier Terraces.......161 work orders dispatched c)...250 James Street....27 work orders dispatched d)...350 Terrace Street. 78 work orders dispatched Contractors: Amblynn Electric...22 work orders dispatched to places where vermiculite was known to be present. [ 11 ] After April 2006 remediation work was undertaken on 80 units, which included sealing, air monitoring, and eventually (when roofs were replaced) removal.

It goes without saying that this response was much too late in coming. [ 12 ] The attic spaces were not living spaces. From the defendant’s testimony it appears they were empty, windowless and relatively small, containing only the insulation and electrical wires. From a tenant’s perspective they would seem likely and logical places for storage. [ 13 ] The defendant appears in the foregoing script on October 4 , 2005 (par. 2) and disappears on October 26 of the same year (par. 6). The time frame of the charge against him extends through to April 6 th of the following year.

It is his absence from the Agreed Statement which leads to the charge. After October 26th the defendant did nothing further. The Crown’s case is that this very inaction constitutes a breach of s.17. The defence asserts that the steps Mr. Della Valle took in October are all that should reasonably be expected of him. [ 14 ] Cyril Leudey was employed by the Department of Community Services to coordinate various projects between DCS and other agencies, such as CBIHA. In this sense he was a go-between, relaying technical information and advice.

He had done this in 1999 in respect to asbestos insulation found under a few balconies on CBIHA properties. He had virtually no recollection of a Housing Services Quarterly Meeting in June of 2005 where the minutes state that vermiculite insulation was discussed, but not considered to be present in Housing Authority units. In

summary, Mr. Leudey never spoke to the defendant about this or any other safety issue during the relevant time period and his evidence has little bearing on the outcome of this trial. [ 15 ] Joan McKeough testified that the CBIHA administers about 3200 rental properties on behalf of DCS in Cape Breton. These accommodate primarily moderate to low income families and seniors. [ 16 ] On April 4, 2006 the defendant informed Ms McKeough of a letter addressed to her dated March 31, 2006. The letter was received by fax at CBIHA. The letter was from a Mr.

Gillis of Amblynn Electric, a contractor doing electrical work in a CBIHA unit. An employee of this firm had evidently voiced concern to his boss in the month previous about the presence of asbestos in the work space. The contractor came into possession of the October 25, 2005 report from Mr. Muggah and had spoken with the Department of Labour. The firm advised that it would not continue with electrical repairs to 2 nd floor units and expressed concern that tenants, maintenance personnel and contractors had not been notified of the situation. [ 17 ] Mr.

Della Valle gave a statement to Department of Labour investigators, and testified at his trial. He began to work with CBIHA as a student in 1989 in a maintenance position, and was hired as its OHS Coordinator in September of 2004. It appears he shared the job for a few months, but took over sole responsibility in July of 2005. While he was not paid at the level of top managers, the organizational chart puts him at the top level, reporting directly to the Director, Ms. McKeough. He was not, until 2009, invited to attend management meetings. His is the only position to which no other reports.

On the maintenance side, by contrast, there are many levels of reporting, with property managers, maintenance supervisors and maintenance workers in a descending line of authority. [ 18 ] Mr. Della Valle thus occupied a unique position within the organization. His role, set out in his job description and considered in the context of the legislation, was to promote a safe and healthy workplace. While there were specific projects he undertook, and particular duties spelled out, he also bore a general responsibility for health and safety within the organization.

It is true that he was not engaged “hands-on” with repairs and maintenance. He might only rarely attend at one of the housing units. But while this distances him from the responsibility to supervise particular jobs at specific sites and times, it does not diminish his responsibility for health and safety matters in the broader sense.

This issue was indeed a broadly-based health and safety issue which required a systemic response. [ 19 ] Although the defendant “reported” the Muggah letter to two of the maintenance supervisors, MacNeil and Routledge, it is clear that he was not directly accountable to them within the organization. With the person he did “report to”, he was conspicuously silent. [ 20 ] Mr. Della Valle would also have known that MacNeil and Routledge exercised authority over the maintenance employees, but he

would know too that the concerns of tenants were not their primary responsibility and that they did not exercise exclusive supervisionover contracted employees. [21] Mr. Della Valle said that fire drills and a “return to work” program occupied most of his time. He was updating the safetymanual, which included procedures on job hazard assessments. He attended most JOHS committee meetings, held monthly, and acted asa resource for them. He also met with Ms. McKeough regularly.

If there was a relatively serious incident at a worksite – damage, aninjury or “near-miss”, a tenant’s accident – the supervisor’s report of such would come to him for review. He in turn would review thesewith Ms. McKeough who would, in his words, “sign-off” on such. He says he would have little to do with the implementation of follow-up measures; rather, these were undertaken by the people directly involved in maintenance. [22] The morning after Mr. Della Valle received the Muggah report (par.3 and 4. of the Agreed Statement) he made a copy and wentto see Mr. MacNeil to discuss it.

He told MacNeil what Muggah had told him, and at MacNeil’s suggestion went to Routledge and did the same. He says he was aware that MacNeil sought advice from Mr. Leudey on October 27th. With this he “took for granted” thataction would ensue. He did not consider himself a manager within the organization. He believed from past practice that he would not beinvolved in any decision-making on what action would be undertaken. While it appears that Mr. Della Valle felt somewhatmarginalized, there is no evidence that he was ever ignored, pushed aside, or intimidated. He kept the original of Mr.

Muggah’s letter inhis own files. [23] Joan McKeough confirmed that she was the defendant’s direct supervisor. They worked in the same building and had frequentconversations and meetings. It was her expectation that he would have reported this matter to her “if he understood the significance ofit.” It is difficult to see how he could not have understood the significance of the Muggah report. Ms. McKeough also confirmed thataccording to policy staff were required to report all incidents, accidents, etc. and that the defendant would, as part of his job, review allsuch reports. While Mr.

Muggah’s letter did not come forward in the usual way - it was, in other words, not a typical incident reportfiled in the usual form - the letter surely was tantamount to a report on an incident of extreme importance to many people. Given thepractice under which the defendant reviewed incident reports with Ms. McKeough, it is difficult to understand why he would make anexception in this instance. [24] Ms. McKeough also understood that the OHS Coordinator should report known hazards to the JOHS Committee. While thedefendant did report the matter to Mr.

Routledge, who happened to be management’s representative on this committee, he did not reportit at or in the context of a JOHS committee meeting. [25] Mr. MacNeil pled guilty to this same offence on May 13th, 2011. This does not exonerate the defendant, needless to say, giventhe principle of shared responsibility in the OHS Act. Nevertheless Mr. MacNeil appears willing to shoulder the blame, saying that “thebuck stopped with me” and describing the OHS Coordinator as an “information source”. He confirmed that if Mr.

Della Vallehappened to see something untoward on a worksite he would go to one of the supervisors for corrective action, having no direct authorityover the employees. [26] Mr. MacNeil says that the defendant told him to “notify his men”, and MacNeil claims to have done this verbally at toolboxmeetings where he advised the workers “not to disturb it”. He also faxed the Muggah letter off to Cyril Leudey, but did little else. In themonths after October of 2005 it appears he put off inquiries from certain individuals about possible asbestos contamination. When, inApril, Mr.

Gillis of Amblynn Electric asked him about the Muggah report MacNeil said he’d forgotten he had it. Apparently Mr.Routledge had given the report to Mr. Gillis on March 31, 2006. [27] When questioned by investigators, Mr.

Della Valle said “I never received any issues pertaining to asbestos in vermiculite fromeither tool box talks, hazard assessment, worksite inspections or employee investigations all of which came to me for review and filing” In the same statement he was asked “Did you . . . take any independent action regarding disseminating of the information relating to thepresence of the asbestos in the insulation, or to ensure that the measures recommended by Mr.

Muggah . . . were actually carried out?” towhich he replied “No I did not…I took it for granted that action would be carried out” He then made a comparison with prior practicewith fire drill inspections whereby he would recommend action on deficiencies to supervisors and thereafter assume suchrecommendations were carried out.

Risk / Endangerment [28] One document in the book of exhibits is a letter from Canada Mortgage and Housing Corporation to the Department ofCommunity Services stating that CMHC had recently been advised by Health Canada of a “potential health due to asbestos in loose fillvermiculite insulation.” If Mr. Della Valle wished to have confirmation of the statements made by David Muggah, such advisories werereadily available to him. What constitutes risk or endangerment has been considered in other cases, but rarely centers around medicalevidence.

No expert opinion is needed to show that falling off a platform, or catching one’s arm in a machine, presents a risk to health. Here the concept of risk is somewhat more distant from the event, both in time (any harm that materializes will occur years fromexposure) and in nature (it is impossible to measure actual exposure levels and predict effects on a particular individual). [29] Defense has pointed out the paucity of medical evidence in this trial concerning actual harm or risk. That, however, is not a fatalflaw in the Crown’s case.

Persons at a worksite are expected to act in timely fashion on reliable information about possible dangers. Such risks may not materialize but nevertheless be real (nobody may actually get caught up in an exposed moving machine part) or aperceived risk may later turn out to be no actual risk at all (subsequent medical research debunks earlier beliefs about health effects of aparticular substance). For the purposes of s.17 of the OHS Act, however, these are one and the same with a case where a known riskmaterializes into actual harm.

The duty to act arises when there is a “potential health hazard” identified by an individual at a worksite, orknown as a result of advice from a reliable source. Where someone in the position of the defendant has knowledge of a possible dangerfrom a credible source, this alone may precipitate a duty to take positive preventive measures. Whether this perceived risk issubsequently shown to be an actual, real risk – either in Court or in the broader scientific or public arena – is immaterial. This is, I think,a justifiable extension of the line of reasoning found in R. v.

Timminco (2001) (ON CA), 153 C.C.C. (3d) 521 and

cited in R. v. Eagles [2009] N.S.J. No 520 at para 77. [30] In the case of asbestos, one is more in the realm of health than safety, in the usual sense of those words, although the twoconcepts overlap to a degree. The risk is more to the long-term well being of a person. Asbestos is said to pose little risk of immediateharm; rather, the documents in evidence before me speak to possible long-term health effects which manifest long after a person has beenexposed. [31] I have no expert medical evidence on the danger to human health posed by vermiculite which contains asbestos.

No employee ortenant has been diagnosed with any asbestos-related illness, and hopefully none will be. More pertinent, however, is what the defendantwas given to believe of the potential risks posed to workers and tenants. This belief came from a credible source: Mr. Muggah atAtlantic Indoor Air Audit Co. This firm had been entrusted with the analysis of the sample. Its advice about steps required to minimizethe risk of living and working near this “proven human carcinogen” should have been heeded, particularly in the absence of anyindication to the contrary.

Indeed, the defendant has never contended that he disbelieved or distrusted what he was told. [32] Defense points out that there is little (if any) evidence about what workers actually did subsequent to October 2005, or howtenants behaved in regard to use of the attic spaces. I think, however, that it is safe to infer, from what is known of the steps taken by thedefendant, MacNeil and Routledge, that proper breathing apparatus was not employed, nor were the attic hatches sealed.

And I do havebefore me direct evidence that an outside contractor did work in places containing the tainted vermiculite without any knowledge of thisand without taking any precautions respecting asbestos. Prime facie case [33] In Eagles (above) at para. 73 the judge says, referring to R. v. City of Sault Ste.Marie (SCC), [1978] 2 S.C.R.1299 and R. v.

Wholesale Travel Group Inc. (SCC), [1991] 3 S.C.R. 154, “. . . the Court observed that the governmentcan, as a practical matter, do no more than demonstrate that it had set reasonable standards to be met by persons in the regulated sphereand to prove beyond a reasonable doubt that there has been a breach of those standards by the regulated defendant.” At para. 80 the courtindicates that “to establish a prime facie case the Crown must prove the actus reus beyond a reasonable doubt.” At para. 83, the courtstates that a review of the specific provision in issue in that case “was required in order to ascertain whether the Crown has led someevidence on all of the essential elements in order to establish its prime facie case.” The use of the term “prime facie case” coupled with“some evidence” risks confusing the Crown’s burden in a trial of a regulatory offence with the burden of proof on the Crown in apreliminary inquiry.

Timminco (above)and other cases may have applied such terminology, but I think it is best avoided. Workplace / other persons [34] Every unit containing vermiculite insulation became a “workplace” any time an employee or contractor of CBIHA attended thereto do maintenance or repairs. Tenants occupying such premises were then brought within the ambit of s.17 as “other persons”. Whilethe agreed statement is not completely clear as to how many units were involved in the 515 work orders (see par.14) it states specificallythat the contractor, Amblynn Electric was dispatched to 22 sites where vermiculite was present.

The statement also notes that CBIHAemployees worked in attic areas between October 2005 and April 2006. It seems safe to infer, on all the evidence, that at least some ofthese attics contained vermiculite.

As noted, even if an employee did not enter the attic attendance at the housing unit visited upon it thelegal definition of a “workplace” and made the tenants “other persons” deserving of protection under the OHS Act. general duty offences [35] A so-called general duty provision like s.17 is included in the OHS Act included because it is not possible to foresee everysafety-related circumstance which will arise in a workplace. It is not possible to lay out a blueprint for how every employee should act inevery contingency. In this sense it is akin to

section 100 in the Motor Vehicle Act which creates a positive duty to drive “in a careful andprudent manner having regard to all the circumstances” and provides an offence for not doing so. While the MVA contains many rulesabout what drivers must do (or not do) in particular situations, it is not possible to foresee all possible situations which may arise on ahighway. [36] Leading cases in the Supreme Court (noted below) were largely concerned with the mens rea requirement for regulatory offences. They made clear that the Crown need not prove intent in the usual sense.

At the same time the Supreme Court eschewed absoluteliability, defining and making available in all such cases the defence of due diligence. However, it appears that the discussion occurredwith specifically defined standards in mind. The decisions refer to a “particular event”. The discussion of proofs and burdens appears tobe framed around some specific thing, defined and enshrined in regulation, which a defendant has done or omitted to do. Thesurrounding circumstances, in those cases, for those charges, were foreseen and described.

An example of this, from our jurisdiction, isEagles (above) where the charges were “failing to ensure that a guardrail was installed at the perimeter or open side of the work areawhere a person was exposed to the hazard of falling” and “failing to ensure that a work platform was securely fastened in place so as toprevent movement by cleating or wiring, etc.” [37] R. v. City of Sault Ste.Marie (SCC), [1978] 2 S.C.R. 1299 involved the discharge of materials into a waterwaysuch as might impair the quality of the water, an offence under the Ontario Water Resources Commission Act.

The relevant sectionsought to prohibit a specifically defined act; it told municipalities something they must not do. [38] R. v. Wholesale Travel Group Inc. (SCC), [1991] 3 S.C.R. 154 concerned a breach of a prohibition againstmisleading advertising, where the company, for the purpose of promoting use of a product, made a representation to the public that isfalse or misleading in a material respect. Again the regulation set out a certain thing that a person or company must not do.

[39] R. v. Chapin (SCC), [1979] 2 S.C.R. 121 dealt with a prohibition against hunting migratory game birds within acertain distance of a baiting station. [40] R. v. MacMillan Bloedel Ltd. 2002 BCCA 510 invoked a charge under federal fisheries legislation outlawing the deposit of adeleterious substance in water frequented by fish. [41] Various other cases, cited in Eagles and elsewhere, belong to the OHS realm. In R. v.

Timminco Ltd. (2001) (ON CA), 153 C.C.C. (3d) 521 an employer was charged with breach of a requirement to fence or guard any machine with an exposedmoving part which might endanger someone’s safety. The regulation created a positive obligation, but it was a specifically defined one. In a similar vein is R. v. General Scrap Iron and Metals Ltd. 2002 ABQB 665 , 2002 CarswellAlta 869 where the charge wasfailing to take all reasonable steps to ensure that materials were contained so as to avoid a potential danger from dislodgement.

This wascoupled with a more general charge of failing to ensure the health and safety of a worker. In R. v. Canada Brick Ltd. [2005] O.J. No.2978 we see a charge of failing, as an employer, to take every precaution reasonable in the circumstances for the protection of a workerat a workplace, a general duty offence similar to the one facing Mr. Della Valle.

In Canada Brick “particulars” were also given,stipulating the specific omission which the Crown relied on, i.e. the failure to implement interim safety measures to prevent access to theexposed moving parts of a machine (the company being in the process of completing steps to provide a guard on the machine as orderedby an inspector). [42] The foregoing is certainly a very incomplete canvass of case law, but it may serve to contrast the duties and prohibitions, generaland specific, which one finds in regulatory law.

It may serve to preface what I see as an implication for proof of regulatory offences, andfor the availability of the due diligence defense, in cases where the defendant is charged with breach of a so-called “general dutyprovision” such as the one found in s.17 of Nova Scotia’s OHS Act. [43] To summarize, it seems that the Supreme Court’s formulations of strict liability, and its legal companion the due diligencedefense, occurred in cases where there was a prohibition against doing a specific thing.

Cases have applied the formulation to caseswhere the charge was failing to carry out a positive duty, but even in these cases it appears there were particular measures - set out inother regulations, or an inspector’s order, or recognized industry standards – which ought to have been taken. Phrases such as “particularevent”, “prohibited act” or “proscribed act” are employed. The charge against Mr. Della Valle admits to no such specificity. Due diligence defense [44] The due diligence defence has two branches. These are described in MacMillan Bloedel, supra, at para. 47 and 48.

The classicformulation, from Sault Ste. Marie, is as follows : “The defense will be available if the accused reasonably believed in a mistaken set offacts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.” These arealternative aspects of the defense. I will refer to them as “mistake of fact” and “all reasonable steps”.

The second of these predominatesin the case law and in this sense is the more important. [45] In the general duty provision at hand, s.17 of the OHS Act, the actus reus of the offence is the failure to take every reasonableprecaution in the circumstances. The Crown must prove the actus reus beyond a reasonable doubt. The second branch of a due diligencedefense would have the defendant prove, on a balance of probabilities, that he took all reasonable steps to avoid the commission of theoffence.

Whether either burden is met is assessed on all the evidence at trial, led by both parties, regardless of which party bears the legalonus. If “precautions” may be equated with “steps” and “every” to “all”, then “every reasonable precaution” equates to “all reasonablesteps”. Being equivalent terms, if the Crown proves the absence of such beyond a reasonable doubt, it is logically impossible for theDefense to establish the same proposition, on the same evidence.

In other words, if the Crown succeeds in proving the actus reus in ageneral duty provision such as s.17, which a court must first determine, any analysis of the “all reasonable steps” defense becomes mootand it should be unnecessary for a court to consider it. [46] As an aside it may be noted that there are often matters which are known only to a defendant.

This may invoke an evidentiaryonus on the defendant to supply such evidence at trial, if such matters are not already known through the Crown’s witnesses. [47] The Crown may, as a result, have a more difficult case “prime facie” case to prove where the offence charged is a general dutyprovision such as the one here. It must prove beyond a reasonable doubt that there were things which the defendant could and shouldhave done to protect health and safety that he did not do, things which a reasonably prudent person in his position would have done.

Butif successful in making such a case, the Crown would cut the legs out from under the “all reasonable steps” defense. As always, theCrown need not prove a mental element. [48] The “mistake of fact” aspect of due diligence may still, at least in a logical sense, be available, although it is not easy to conceiveof such a situation. Perhaps if Mr.

Della Valle had received subsequent credible, but mistaken, information that the Housing Authoritywas actively taking appropriate measures to address the risks posed by the insulation, such would (hypothetically) constitute a mistake offact defense, excusing his own failure to act. Omissions of the defendant [49] There is nothing wrong with what Mr. Della Valle did. The question is whether what he did was sufficient compliance with s.17of the OHS Act. After his meetings with MacNeil and Routledge the defendant assumed a passive role.

In assessing what he ought tohave done, both his job description and the OHS Act provide important context. For ease of reference I have included some of thesesections in Appendix A. [50] Defense counsel submits that Mr. Della Valle “was in the wrong place at the wrong time.” If he hadn’t happened to stop by Mr.MacNeil’s office the day the sample was going off for analysis he wouldn’t ever have been caught up in this scenario. Knowing how

Mr. MacNeil, for one, dealt with the Muggah report, it is indeed possible that Mr. Della Valle would never have known about the situation had he not dropped into MacNeil’s office that day. He did not cause the problem and did not ask for it. However, in another sense, Mr. Della Valle was in the right place at the right time. He had an opportunity to address this issue on a number of fronts. It appears that he would have chosen to give the letter only to Mr. MacNeil, and done nothing else.

In the circumstances the OHS Act demanded more. [ 51 ] One sees in the Muggah report, and it is confirmed by the actual remediation plan which eventually was put into effect, that a proper response involved notification and advice to tenants, physical modification of the premises, use of specialized equipment, advice to employees and contractors and attendant budgetary measures. This goes well beyond the job description of any one person, maintenance supervisor or otherwise.

If such steps had indeed been implemented as a result of the defendant’s conversations with MacNeil and Routledge in October, it would necessarily involve almost the entire Housing Authority staff in one way or another. Not being aware of any such measures subsequent to October 2005 should have raised a concern with the defendant and prompted follow-up with the two supervisors. [ 52 ] Defense points out that after April 2006, when an action plan was developed and implemented, the defendant was consigned to the role of fielding questions from concerned tenants. While this may lend support to Mr.

Della Valle’s belief that he would play little

part in addressing the risk, i.e. in implementing a remediation plan, it does not explain why he should not have given wider circulation to the Muggah report in the first place and subsequently ensured that appropriate action of some sort was in fact instigated. [ 53 ] Steps that Mr. Della Valle should have undertaken include: A. Immediate notification of Ms. McKeough of the contents of Mr. Muggah’s report of October 25 , 2005. Given the knowledge possessed by Mr. Della Valle, Mr. MacNeil, Mr. Routledge and Mr. Leudey it is astounding that Ms. McKeough was kept in the dark about this situation until April 2006.

B. Following up directly with Mr. MacNeil and Mr. Routledge to determine whether and to what extent they had acted on Mr. Muggah’s recommendations C. Attending and reporting to one of the monthly JOHS meetings about the presence of asbestos in the units D. Instigating a formal hazard assessment for any work or activity which might involve an employee of CBIHA entering the attic or disturbing the insulation from below. [ 54 ] To this list I might add (lest he had misgivings about Mr.

Muggah’s advice) that there was additional information publically available from Health Canada and the Department of Labour on how to deal with this material when found in residential premises. [ 55 ] There is overlap amongst these steps, needless to say. For instance, if he had done A. then B. might have become superfluous. [ 56 ] I conclude that the Crown has proven beyond reasonable doubt that Mr. Della Valle failed to take every reasonable precaution in the circumstances to protect the health and safety of persons at or near the workplace. The defendant has failed to establish a due diligence defense.

He is found guilty of the offence as charged. Dated at Sydney, N.S. this 14 th day of September, 2011 ___________________________________ Judge A. Peter Ross Appendix A 2 The foundation of this Act is the Internal Responsibility System which (

a) is based on the principle that (

i) employers, contractors, constructors, employees and self-employed persons at a workplace, and (ii) the owner of a workplace, a supplier of goods or provider of an occupational health or safety service to a workplace or an architect or professional engineer, all of whom can affect the health and safety of persons at the workplace, share the responsibility for the health and safety of persons at the workplace; (

b) assumes that the primary responsibility for creating and maintaining a safe and healthy workplace should be that of each of these parties, to the extent of each party's authority and ability to do so; (

c) includes a framework for participation, transfer of information and refusal of unsafe work, all of which are necessary for the parties to carry out their responsibilities pursuant to this Act and the regulations

(1) Every employee, while at work, shall (

a) take every reasonable precaution in the circumstances to protect the employee's own health and safety and that of other persons at or near the workplace; (

b) co-operate with the employer and with the employee's fellow employees to protect the employee's own health and safety and that of other persons at or near the workplace; (

c) take every reasonable precaution in the circumstances to ensure that protective devices, equipment or clothing required by the employer, this Act or the regulations are used or worn; (

d) consult and co-operate with the joint occupational health and safety committee, where such a committee has been established at the workplace, or the health and safety representative, where one has been selected at the workplace; (

e) co-operate with any person performing a duty or exercising a power conferred by this Act or the regulations; and (

f) comply with this Act and the regulations.

(2) Where an employee believes that any condition, device, equipment, machine, material or thing or any aspect of the workplace is or may be dangerous to the employee's health or safety or that of any other person at the workplace, the employee shall (

a) immediately report it to a supervisor; (

b) where the matter is not remedied to the employee's satisfaction, report it to the committee or the representative, if any; and (

c) where the matter is not remedied to the employee's satisfaction after the employee reports in accordance with clauses (

a) and (b), report it to the Division. 1996, c. 7, s. 17 . 23

(1) A specific duty or requirement imposed by this Act or the regulations does not limit the generality of any other duty or requirement imposed by this Act or the regulations.

(2) Where a provision of this Act or the regulations imposes a duty or requirement on more than one person, the duty or requirement is meant to be imposed primarily on the person with the greatest degree of control over the matters that are the subject of the duty or requirement.

(3) Notwithstanding subsection (2), but subject to subsection (5), where the person with the greatest degree of control fails to comply with a duty or requirement referred to in subsection (2), the other person or persons on whom the duty or requirement lies shall, where possible, comply with the provision. 31

(1) It is the function of the committee to involve employers and employees together in occupational health and safety in the workplace and, without restricting the generality of the foregoing, includes (

a) the co-operative identification of hazards to health and safety and effective systems to respond to the hazards; (

b) the co-operative auditing of compliance with health and safety requirements in the workplace; (

c) receipt, investigation and prompt disposition of matters and complaints with respect to workplace health and safety; (

d) participation in inspections, inquiries and investigations concerning the occupational health and safety of the employees and, in particular, participation in an inspection referred to in

Section 50; (

e) advising on individual protective devices, equipment and clothing that, complying with this Act and the regulations, are best adapted to the needs of the employees; (

f) advising the employer regarding a policy or program required pursuant to this Act or the regulations and making recommendations to the employer, the employees and any person for the improvement of the health and safety of persons at the workplace;