HER MAJESTY THE QUEEN (ONTARIO MINISTRY OF LABOUR) v. HER MAJESTY, 2013 ONCJ 358

COURT FILE #s. 09300354, 10400978 and 05001902: Toronto DATE: June 27, 2013 Citation: Ontario (Ministry of Labour and Ministry of the Environment) v.

Sunrise Propane Energy Group Inc. et al ., 2013 ONCJ 358 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN (ONTARIO MINISTRY OF LABOUR) AND HER MAJESTY THE QUEEN (ONTARIO MINISTRY OF THE ENVIRONMENT) — AND — SUNRISE PROPANE ENERGY GROUP INC. — AND — 1367229 ONTARIO INC — AND — SHAY BEN-MOSHE — AND — VALERY BELAHOV Before Justice Chapin Heard on January 30 th , 31 st , February 2 nd , 3 rd , 6 th , 7 th , 8 th , 9 th, 13 th , 14 th , 21 st , 23 rd , June 11 th , 12 th 14 th , October 1 st , and November 7, 2012 Reasons for Judgment released on June 27, 2013 Nicholas Adamson and Justin Jacob for the Ministry of the Attorney General, Ministry of the Environment Wes Wilson and Jai Dhar for the Ministry of the Attorney General, Ministry of the Environment Leo Adler for the defendants Sunrise Propane Energy Group Inc., 1367229 Ontario Inc., Shay Ben-Moshe and Valery Belahov Chapin J.:

Index Page 1. Introduction 1 2. The Agreed Statements of Fact 4 3. Evidence Called at Trial 9 a. The Regulation of Transportation\Handling Propane 9 b. The Application for a Modification 12 c. Construction of the 30,000 USWG Tank 22 d. Mandatory Propane Training 26 e. The Explosions 32 f. The Cause of the Explosions 37 g. The Clean-up After the Explosions 42 4. The Occupational Health and Safety Charges 57 a. Position of the Crown 58 b. Position of the Defence 69 c. Analysis 74 5. The Environmental Protection Act s. 14 Charge 80 a. Position of the Crown 80 b. Position of the Defence 93 c.

Crown Response to Defence Submissions 99 6. The Breach of Order Charges 99 a. Position of the Crown 101 b. Position of the Defence 109 c. Crown Response to Defence Submissions 115 c. Analysis regarding s. 14 charge 118 d. Analysis regarding the Breach of Order Charges 129 7. Conclusion 134 -------------------------------------------------------

Introduction [ 1 ] The defendants are charged with a number of regulatory offences under the Environmental Protection Act , R.S.O. 1990, c. E. 19 as amended and the Occupational Health and Safety Act R.S.O. 1990, c.0.1 as amended. These charges arise out of a series of explosions that occurred at 54 Murray Road in the city of Toronto in the early morning hours of August 10, 2008. At the time of the explosions there were two employees at the site. Mr. Felipe De Leon had just refilled a small propane truck with propane from a larger truck and Mr. Parminder Singh Saini was dispensing propane to automobiles. Mr.

De Leon was able to escape the site with relatively minor injuries; however, tragically, Mr. Saini was killed by the explosions. [ 2 ] There are three informations before the Court. Counsel agreed to have all of the defendants arraigned on all charges at the same time and that the evidence at trial would apply to all of the charges. This is because much of the evidence called provided context for all of the charges. There are two sets of charges under the Environmental Protection Act .

The first set relates to the discharged contaminants that were released into the environment as a result of the explosions and the second set involves alleged non-compliance with Orders that were issued after the explosion had occurred. [ 3 ] Sunrise Propane Energy Group Inc. and 1367229 Ontario Inc. are jointly charged with discharging or causing or permitting the discharge of a contaminant, namely sound, vibration, heat, gas vapour or solids, into the natural environment that caused or was likely to have caused an adverse effect, contrary to Sec. 14(1) of the Environmental Protection Act , R.S.O. 1990, C.

E. 19 as amended, thereby committing an offence under Sec. 186 (1) of the Act . [ 4 ] Sunrise Propane Energy Group Inc. is also charged with five counts of failing to comply with a provincial officer’s Order contrary to Sec. 186(2) of the Environmental Protection Act , R.S.O. 1990, C. E. 19 as amended, failing as an employer to provide information, instruction and supervision to a worker to protect the health or safety of the worker at a workplace contrary to Sec. 25(2)(

a) of the Occupational Health and Safety Act , R.S.O. 1990, c. 0.1, as amended and failing as an employer to take every reasonable precaution in the circumstances for the protection of a worker at a workplace contrary to Sec. 25(2)(

h) of the Act . [ 5 ] Mr. Shay Ben-Moshe and Mr. Valery Belahov, being directors of the corporation, are both charged with failing to take all reasonable care to prevent the corporation from contravening a provincial officer’s Order contrary to the Environmental Protection Act , R.S.O. 1990, C. E. 19 as amended.

The wording on counts six and seven of this information was amended during the course of the trial to change the wording from “did commit the offence of being the director of a corporation....” to “did commit the offence of being a director of a corporation”. [ 6 ] The charges under the Occupational Health and Safety Act allege that Sunrise Propane Energy Group Inc. failed to provide appropriate information, instruction and supervision to Mr. Saini regarding the safe work practices and recognition of hazards associated with propane storage, dispensing, handling and appropriate emergency response to propane leaks.

And, that on or about the 10 th day of August, 2008 Sunrise Propane Energy Group Inc. did commit the offence of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker at a workplace located at 54 Murray Road, contrary to section 25(2)(

h) of the Occupational Health and Safety Act by failing to take the reasonable precaution of ensuring that a propane facility was installed and operated in accordance with regulatory requirements and safe industry practice. The Agreed Statements of Fact [ 7 ] At the outset of the trial three agreed statements of fact were read into the record.

Any admission or agreement in the agreed statement of facts is not meant to be an admission or agreement by any of the defendants for any other purpose or legal proceedings, whether contemplated or currently underway, and as such it is restricted to these proceedings under the Provincial Offences Act , and for the purposes of these proceedings only. [ 8 ] The agreed statement of facts for the Sec. 14 Environmental Protection Act charges is as follows: Sunrise Propane Energy Group Inc. is and was on August the 10 th , 2008, a corporation duly incorporated under the laws of Ontario.

On or about August the 10 th , 2008, Sunrise Propane operated a propane business that supplied propane and industrial gases at a facility located at 54 Murray Road in the city of Toronto. 1367229 Ontario Inc. is and was on August the 10 th , 2008, a corporation duly incorporated under the laws of Ontario. 1367229 Ontario Inc. carries on business as Sunrise Propane, and was on August the 10 th , 2008, the holder of an authorization pursuant to Ontario Regulation 211/01 made under the Technical Standards and Safety Act, S.O. 2,000,

CHAPTER 16 , to operate a propane refill cylinder and motor fill at the facility. From September 2004 up to and including August 2008, 1367229 Ontario Inc. leased the property on which the facility is located from Teskey Construction Co. Ltd. On August the 9 th , 2008, Sunrise Propane dispatched Victor Vlad an independent contractor who drove propane tankers for Sunrise Propane to drive cargo liner unit 861 to the BP Energy Canada Ltd. liquid propane terminal in Sarnia to purchase bulk propane. Cargo liner unit 861 was a tanker trailer with an 18,000 USWG capacity, or 68,000 litres.

Sunrise Propane leased unit 861 from 1452049 Ontario Inc., a company owned by Gary Mizlitsky which operated as Discount Propane out of the same 54 Murray Road facility. Mr. Mizlitsky also worked for Sunrise Propane as its fleet manager and dispatcher in which capacity he would direct Sunrise Propane drivers to drive to Sarnia to pick up bulk propane and transport it back to the facility from which it would be distributed to Sunrise Propane customers. He would also take orders from Sunrise Propane customers and direct Sunrise Propane drivers to make propane deliveries to those customers.

On August 9 th , 2008, Mr. Vlad filled unit 861 with approximately 15,600 USWG, or 59,000 litres, of liquid propane from the terminal in Sarnia, and then drove unit 861 back to the facility where he parked it at approximately 5:00 p.m. Unit 861 was typically used to fill smaller propane tanker trucks for delivery in and around the Greater Toronto Area, to customers whose sites would be inaccessible using a larger tanker trailer like unit 861. One of these smaller cargo liners was unit 1 which had a tanker capacity of 14,900 USWG, or 56,400 litres, for liquid propane.

When unit 861 returned to the facility on August the 9 th , 2008, Mr. Vlad transferred approximately 4500 to 5300 USWG, or between 17,000 to 20,000 litres, of liquid propane from unit 861 into unit 1. At approximately 8:45 p.m., Felipe De Leon, another independent contractor who drove propane tankers for Sunrise Propane, arrived for work. Gary Mizlitsky dispatched him to deliver propane using unit 1, to four Sunrise Propane customers, before returning to the facility. Unit 1 was approximately 50 per cent full when Mr. De Leon returned to the facility at around 3:00 a.m. on Sunday, August the 10 th , 2008. Mr.

De Leon did a truck-to-truck transfer of liquid propane from unit 861 to unit 1. As a result of the transfer, unit 1 was filled to between 85 per cent and 90 per cent of its capacity. At about 3:47 a.m. on August the 10 th , 2008, there was a large propane vapour cloud explosion at the facility, hereafter referred to as explosion #1. Explosion #1 was followed by numerous smaller explosions as the heat from explosion #1 ignited tanks of propane belonging to Sunrise Propane and other companies that were stored at the facility.

Approximately six minutes after explosion #1, there was a second large propane explosion at the facility, explosion #2. Explosion #2 was a BLEVE, an acronym for boiling liquid expanding vapour explosion, of unit 1, the tanker that Mr. De Leon had been filling. After explosion #2, further smaller explosions of smaller tanks of propane followed until the daylight hours.

The propane that exploded in explosion #1, explosion #2, and in the other smaller explosions that followed both explosion #1 and explosion #2, was under the management and control of Sunrise Propane. [ 9 ] The propane explosions at the facility on the morning of August the 10 th , 2008, resulted in a discharge of contaminants from the facility into the natural environment. The contaminants that were discharged included heat, vibration, sound, gas vapour, smoke, and solids such as asbestos, dust, metal fragments, and other debris.

The discharged contaminants caused a variety of adverse effects, including personal injuries, including cuts, bruises and burns to neighbours in nearby residences, damage to neighbouring residences, including shattered windows, blown-in garage doors and structural damage to walls, ceilings and roofs. Some homes were rendered uninhabitable for over a year.

Many nearby residents were forced to immediately flee from their homes due to the on-going explosions and/or the threat that their homes might collapse due to the structural damage caused by the explosions. [ 10 ] Approximately 12,000 residents within a 1.6 kilometre radius of explosions were evacuated in the middle of the night due to the threat of further explosions while the fire persisted at the facility. Residents who were displaced by the blasts suffered lost wages, and were forced to pay out-of-pocket expenses for temporary shelter and clothing.

Two local elementary schools suffered structural damage, and while all repairs and clean-ups were completed before the opening of the schools in September, significant disruption occurred as teachers and custodians were unable to access the premises during the latter half of August when they would normally be completing preparatory work. [ 11 ] Local businesses suffered structural damage to buildings, closures to the public which caused losses of revenue and losses of working shifts. One business, a car dealership, was completely destroyed. Buildings and headstones in the neighbouring cemetery were damaged.

Asbestos, including friable asbestos which is the most dangerous form of asbestos and other debris, including large metal fragments from the exploded tanks, was dispersed into the neighbourhood as far away as one kilometre from the facility. However, air quality testing commenced on August the 12 th , 2008, and continued throughout the clean-up, subsequently confirmed that airborne asbestos levels were not at levels that would cause human health effects. A local child-care centre was temporarily closed due to the potential for asbestos contamination. Mr.

Parminder Singh Saini, a part-time employee of Sunrise Propane who was working the night shift at the facility at the time of the explosions, was killed in the explosions. [ 12 ] The agreed statement of facts regarding the Occupational Health and Safety Act charges was read in as follows: Sunrise Propane Energy Group Inc. was at all material times a corporation duly registered pursuant to the laws of the Province of Ontario. On August 10, 2008, Sunrise was an employer as defined by the Occupational Health and Safety Act . Parminder Singh Saini, date of birth 26 September 1983, arrived in Canada in December 2007.

Saini was enrolled in Sheridan College in Brampton. He was studying quality assurance and mechanical engineering. Saini was employed by Sunrise as an auto cylinder filling attendant at the company’s facility located at 54 Murray Road in the city of Toronto, for four to five and a half months, he worked night shifts on Friday and Saturday nights, he was a worker as defined by the Occupational Health and Safety Act , he was only responsible for filling automobiles, primarily, taxicabs, with propane. Saini was working on the night of August 9 th to 10 th of 2008.

At about 3:47 a.m. on August 10, there was a large propane vapour cloud explosion at the Sunrise facility. Saini was killed in the explosion; the cause of death was inhalation of flames. The TSSA and its regulations require that an auto cylinder filling attendant have PPO3 training. Sunrise used only three people for training employees, Shay Ben-Moshe, Mike Martin and Brent McIntyre. Shay Ben-Moshe did not provide training of any kind to Saini, Valery Belahov did not provide training of any kind to Saini. The deceased is not the same person as Parminder Singh, date of birth 24 October 1983, who is PPO3 trained.

In 2005, the Sunrise Propane facility at 54 Murray Road had been licensed by the TSSA to operate as a propane refill centre, cylinder and motor fill, utilizing two 2,000 U.S. Water Gallon, (hereinafter referred to as “USWG”) tanks, a remote dispenser and a cylinder fill building with a cylinder storage area. One 30,000 USWG tank was delivered to the site on September 25, 2007. Around this time, the two 2,000 USWG tanks that were connected to the cylinder fill and dispenser location were moved approximately 35 to 40 feet from their original location.

Their orientation was also changed from north/south to east/west. This involved moving the tanks and associated equipment, and reconnecting the piping system. 35 to 40 feet of piping was configured and installed, it also included additional piping and the re-installation of flexible hoses to accommodate the new configuration.

Electrical wiring had to be disconnected and reconnected. [ 13 ] The third agreed statement of facts regarding to failure to comply with Orders contrary to the Environmental Protection Act reads as follows: Sunrise Propane Energy Group Inc. is and was in August 2008, a corporation duly incorporated under the laws of Ontario. On or about August the 10 th , 2008, Sunrise Propane operated a propane business that supplied propane and industrial gases at a facility located at 54 Murray Road in the city of Toronto.

Shay Ben-Moshe and Valery Belahov were directors of Sunrise Propane at all relevant times, including between August the 10 th , 2008, and August the 24 th , 2008. On August the 10 th , 2008, beginning at approximately 3:47 a.m., a series of explosions of propane occurred at the facility. The explosions resulted in a discharge of contaminants from the site onto the surrounding properties in a wide radius around the site. The contaminants included asbestos, particulate matter of solids and dust.

Asbestos waste discharged onto the surrounding neighbourhood by the explosions was first identified on August 11 th , 2008, by Team Hazco Emergency Services which had started a cleanup of the neighbourhood impacted by the explosions. The asbestos waste air quality testing started August 12 th , 2008, showed that airborne asbestos levels never reached levels that would cause human health effects.

As a result of the explosions, a number of residences and businesses in the area were evacuated until such time as the area was deemed safe from further explosions at the site, and the health risks associated with exposure to the asbestos were assessed and eliminated. In order to prevent a decrease, or eliminate, any adverse effect that may have resulted from a discharge of any contaminants from the facility, Ministry of the Environment provincial officer Marianne White issued a provincial officer’s Order #6586-7HGMXF, on August 13 th , 2008, to Sunrise Propane.

On August the 13 th , 2008, between 10:00 a.m. and 10:30 a.m., Officer White and Ministry of the Environment Acting District Manager Kathleen Anderson met with Valery Belahov at the Ministry of the Environment offices at 5775 Yonge Street in the city of Toronto. During this meeting, Officer White reviewed a draft version of the Order with Mr. Belahov which included an overview of each of the seven required work items. After this meeting, Officer White finalized and signed the Order, and at approximately 3:00 p.m., she called Mr.

Belahov, and left a voice message indicating the Order was finished, and asked to arrange a meeting so that the Order could be served. At about 3:18 p.m., Officer White received a call from Robert Warren, counsel at WeirFoulds LLP. Mr. Warren indicated that he was calling on behalf of Valery Belahov and Shay Ben-Moshe. At about 3:43 p.m., Norm Rankin, counsel at the Ministry of the Environment, e-mailed a copy of the Order to Mr. Warren, and asked that he accept service on behalf of Sunrise Propane. At 3:57 p.m., Mr. Rankin and Officer White spoke to Mr.

Warren and John Buhlman, also counsel at WeirFoulds LLP, and they advised that they did not have instructions to accept service of the Order. At about 4:41 p.m., Dan Ronen, corporate counsel retained by Sunrise Propane, attended the Ministry of the Environment offices at 5775 Yonge Street, and accepted service of the Order on behalf of Sunrise Propane. Officer White reviewed the Order with Mr. Ronen, and provided him with three copies of the Order. Mr. Ronen advised Officer White and Mr. Rankin that he would be delivering the Order to his client Sunrise Propane when he left the meeting. Mr.

Ronen delivered the Order to Shay Ben-Moshe and Valery Belahov, after he left the meeting at 577 Yonge Street, at sometime between 5:00 and 6:00 p.m. on August 13 th , 2008. The Order was never appealed to the Environmental Review Tribunal . Evidence called at trial [ 14 ] I will go on now to review the evidence called at trial. I will attempt to set out the evidence in chronological order where possible.

Evidence Regarding the Regulation of Transportation and Handling of Propane in Ontario [ 15 ] In 1996 the Ontario Technical Standards and Safety Authority (“TSSA”) was created to deliver public safety services on behalf of the Government of Ontario in a number of key sectors including: (1) boilers and pressure vessels, (2) operation engineers, (3) amusement and elevating devices and (4) fuels (including propane) and (5) upholstered and stuffed articles. The TSSA establishes the

legislative and regulatory framework for the management and enforcement of public safety laws in the aforementioned designated sectors under the Ontario Technical Standards and Safety Act . [ 16 ] A number of witnesses who were working at the TSSA at the relevant times were called as witnesses during this trial. Ms. Sandra Cooke [ 17 ] Ms. Sandra Cooke began her employment with the TSSA in 2002 as the technical leader for the fuels engineering program.

Her duties included supervising the fuel safety engineers who review facility licence applications, variance approval applications, equipment approval applications and regulatory maintenance. [ 18 ] Ms. Cooke explained that the TSSA administers the Technical Standards and Safety Act which empowers the statutory director to issue safety Orders, Director’s Orders, and variances. The Act also allows a right of appeal from the Orders of Inspectors and the Director. The Act is the overarching legislation governing the regulation of fuels. There are a number of regulations below the Act.

One of the regulations relevant to this trial is the Propane Storage and Handling Regulation, Ontario Regulation 211 which contains specific information such as when a facility needs to be licensed, when people handling propane need to be certified and when contractors need to be registered. Below the regulations the TSSA adopts codes. With respect to propane the code involved is the National Propane Storage and Handling Code (“the code”) . This code sets out, in much greater detail, what is required at a propane filling plant. As part of her duties Ms.

Cooke would, along with others, draft Code Adoption Documents. These Code Adoption Documents may make changes or additions to the code or may provide

interpretations of sections in the code. The Code Adoption Documents are Director Orders which make the requirements within the code law. [ 19 ] If a propane filling plant was located in a heavily populated area there were special requirements that had to be satisfied. In 1993, the TSSA developed a standard (Branch Standard No. 9) that was re-issued in 2001. It imposed additional restrictions for propane tank placement in heavily populated areas. A radius of 300 ft. would be drawn around the tank, and then an assessment of building occupancy would be made according to the formula.

The standard also said that a tank could not be within 300 ft. of a school, and also could not be within 25 ft. of a residential building. [ 20 ] In 2005 Ms. Cooke sat on a standing committee, the Risk Reduction Group, as part of her duties. The group involved members from the industry as well as two associations: the Ontario Propane Association and the Propane Gas Association of Canada. The Ontario Propane Association represented most of the facility owners in Ontario. [ 21 ] An issue regarding truck-to-truck transfers was brought to the committee by one of the members. She explained that

section 7.13 of the code allowed truck-to-truck transfers at a facility that had fixed storage capacity of at least 5,000 USWG. The member had indicated that there was some confusion regarding the industry requirements for transferring propane from one tank truck to another. [ 22 ] There were a number of concerns with truck-to-truck transfers. One concern was that an explosion had occurred in New Jersey in 2003 while a truck-to-truck transfer was being conducted. Another was that a facility could increase its capacity for propane storage without the TSSA knowing about it.

For instance, a facility licensed for 5,000 USWG could bring a truck on site that was carrying 20,000 USWG and there would be no way to ensure that ignition sources were far enough away from the truck. This was also a concern as the licensing fees were based on the amount of propane stored at the site. [ 23 ] Ms. Cooke, Mr. Alonzo, (a fuel safety engineer), and Mr. Heyworth, (a fuel safety inspector), prepared an advisory report on these types of transfers. The advisory report they prepared provided clarification and said that trucks were not to be used for storage unless they were fixed and licensed.

This meant that the wheels had to be taken off as well as the axle. The advisory also indicated that a proper set-back from sources of ignition would be required. This advisory was provided to the industry on November 1, 2005 and was posted on the TSSA website. Email notifications also went out to the industry members. [ 24 ] The next meeting of the Risk Reduction Group after the November 2005 advisory was released was in May 2006. There was very vigorous debate at this meeting regarding the prohibition against truck-to-truck transfers, with limited exceptions being contained in the advisory.

The group was divided as to whether or not it should be allowed. Some of the members of the group believed that the TSSA was re-writing the code. [ 25 ] As a result of that meeting Ms. Cooke decided to prepare a Director’s Order which could allow for the change to be adopted as law.

She felt that the industry had valid concerns and some pointed out additional concerns as follows; • that there may not be sufficient lighting where the trucks park if the transfers were conducted in the evening, • if the TSSA was not aware of how these transfers were being conducted they may not be able to inspect properly, and • there might not be appropriate clearances from possible sources of ignition depending on where the trucks were parked. [ 26 ] As a result, the code advisory document was withdrawn. Ms.

Cooke felt that the industry members had a point when they complained that the TSSA was changing the code through an

interpretation process. [ 27 ] The Director’s Order was prepared and signed and Ms. Cooke went through the process required to have the Order issued. Although Ms. Cooke could not locate the signed copy of the Director’s Order to bring to the court she believes that it was signed and said that it was posted on the TSSA website on October 31, 2006 and in two TSSA newsletters the following March along with an

article on truck-to-truck transfers. She believes that the Order was signed because it never would have been posted on the TSSA website if it had not been signed. The intent of the Order was to restrict truck-to-truck transfers to bulk plants only. [ 28 ] Ms. Cooke agreed in cross-examination that the main concern that prompted the creation of the Director’s Order was the complaint that some businesses were paying lower fees for licences when they were actually storing larger amounts of propane by having large tanker trucks on site. She also agreed in cross-examination that she was not sure whether or not she was aware of the New

Jersey explosion in 2003 when she was drafting the Director’s Order and that the TSSA did not have any statistics or studies regarding the threat to public safety while a truck-to-truck transfer of propane was being done. It was Ms. Cooke’s view that it is a matter of common sense that there is a threat of an explosion during the transfer process. [ 29 ] A newsletter was sent out in the winter of 2007 that specifically referred to the Director’s Order and the entire Order was set out in it. The TSSA used Canada Post to deliver the newsletter and was invoiced for this work on March 16 th , 2007. Ms.

Cooke believes that it would have been mailed about a week prior to the invoice being issued. [ 30 ] As far as Ms. Cooke was aware there was never an appeal of the Director’s Order; however, she was aware of a company in Hanover, Ontario that sought a variance of the Order. That company eventually withdrew the request and installed a fixed tank. She was not aware of any other requests for a variance. [ 31 ] Ms. Cooke was also not aware of any appeal or correspondence regarding the Director’s Order. If either had been sent to the TSSA Ms.

Cooke advised that it would have come to her attention as she was responsible for the drafting and development of Director’s Orders. She was also sure that an appeal and letter regarding the Order would have been discussed with her. [ 32 ] The Director’s Order was also included in a Propane Code Adoption Document Amendment dated June 12, 2007 which was issued and posted on the TSSA website on June 14, 2007. [33] Ms. Cooke advised that the TSSA had not approved any truck-to-truck transfers since the Propane Code Adoption Document was issued.

Evidence Regarding the Application for a Modification to the Propane Storage Capacity at 54 Murray Road by 1367229 Ontario Inc. Marek Kulik [34] Marek Kulik has been employed by the TSSA as an Engineering Technologist at the time of trial since June of 2007. In 2007 he was assigned to review propane applications regarding distribution and filling.

Applications of this type must be accompanied by a pre- installation site check sheet, a letter from the relevant municipality confirming that the applicant’s proposed site complies with zoning by-laws, confirmation that the proposed project complies with Branch Standard No. 9 and a site plan. [35] He reviewed an application for an Ontario Licence to Operate a Propane Cylinder Handling Facility made by 1367229 Ontario Inc. for a modification to the facility located at 54 Murray Road in Toronto. The proposal involved the installation of a 30,000 USWG tank in October of 2007.

Sean Ben-Moshe was listed as the owner of the company on the application form and was listed as the applicant on the “Pre-installation Site Checksheet”. Sunrise Propane Industrial Gases was listed as the supplier on the form. A letter dated July 9, 2007 from J. Ross Keys was received confirming that he had reviewed the information regarding the proposed 30,000 USWG tank and that it complied with Branch Standard No. 9. In cross-examination Mr.

Kulik agreed with counsel for the defendants, that it was possible that the July date was a “typo” but as it was not his document he could not comment further. [1] A letter dated December 4, 2006 to J. Ross Keys from Ted Glass, Zoning Examiner, confirmed that the proposed propane facility would be a permitted use under the zoning code was also received along with a site plan with the name “Sunrise Propane”. [36] In cross-examination Mr. Kulik was asked whether or not he had reviewed the Director’s Public Safety Order of October 27, 2006 given that Mr.

Keys specifically referenced it in his letter of July 9 th , 2007 to Mr. Alonso (which was sent in October of 2007). Mr. Kulik could not recall whether or not he had read the Director’s Order while reviewing the package given the passage of time but explained that he did not need to read it to do his job. He was reviewing a proposed modification and not an existing facility. From his perspective the application was for a brand new facility, even though it was the same site. This was because the two 2,000 USWG tanks were not shown on the site plan and this letter was not relevant to what was required of him.

An inspector would have already been paid to review the existing facility with the two 2,000 USWG tanks. He would not be reviewing it again and charging the client for it. [37] Mr. Kulik reviewed the application package, approved it, and sent a letter to Mr. Ben-Moshe dated November 8, 2007 advising him that an inspection of the site would need to be scheduled and asked him to contact Ms. Mary Ferrari, a TSSA inspector. This letter was copied to Mr. Keys as he was the engineer on the project. Mr. Kulik assigned the inspection to Ms.

Ferrari, as assignments were based on the regions the inspectors had been assigned. A copy of the letter would have been sent to the inspection department and Mr. Kulik would have kept a copy of the letter for his files. This meant that construction could begin but the new 30,000 USWG tank would not be able to pump or receive propane until it had been inspected. [38] Mr. Kulik’s November 8, 2007 letter had a licence number in the top left portion of the document; however, Mr. Kulik explained that a license number is assigned at the beginning of the process for tracking purposes.

It did not mean that a licence had been issued. Once the inspector completes the inspection a licence could be issued by him or her. An inspector may or may not have had a part to play in a particular application but typically inspectors don’t get involved in the process. [39] Mr. Kulik was asked if he was able to identify some handwriting on his letter to Mr. Ben- Moshe of November 8, 2007 introduced as Ex. 28 tab K. At the top of the document someone had hand-written the following “forward to Don H.” In the second paragraph someone had scratched out Ms.

Ferrari’s name and had written in “ Don Heyworth” and at the bottom of the letter someone had written “NOV 16/06 MTG. DRAWINGS SEAN, ROSS, 1.5 HRS.” Mr. Kulik did not recognize the writing. [40] Mr. Kulik was referred to the original site plan which did show the two 2,000 USWG tanks as well as the proposed plan drawing, Ex. 29, and agreed that it did appear that the 30,000 USWG tanks would be in the same approximate area; however, he did not go to the site and could not say for certain.

He did not need to review the previous plan to complete his task and confirmed that if the two 2,000 USWG tanks were to be moved, even temporarily, the owner would have to complete an application for a modification of the plan because the prior location was approved based on the code and the new location would have to continue to meet the requirements of the code. [41] Mr. Kulik was cross-examined about the use of the words in item 9 of the notes on exhibit 29 “facility used for filling plant services for bulk truck and cylinder refilling purposes”.

In re-examination he made it clear that those notes refer to the new facility to be

built. The notes on the previous diagram that show the two 2,000 USWG tanks refer to “facility used for retail cylinder refuelling only”. Donald Heyworth [42] At the time of trial Mr. Heyworth had worked for the TSSA for 14 years. He is an inspector with the Fuel Safety Division and works out of his home office in Stouffville. His duties require him to conduct bulk propane plant inspections of 55 plants located in the area from Lake Ontario to the south, Parry Sound to the north, Cobourg to the east, and Mississauga to the west.

He has an extensive background in working with heating fuels as he had worked for Superior Propane for 22 years before he started work with the TSSA. [43] Mr. Heyworth was assigned work in his region and would bring his computer, which contained pre-loaded TSSA forms, as well as a portable printer. He would also use a Hilroy exercise book to take field notes during an inspection. During inspections he would prepare a document titled “Fuel Safety Inspection Report” if a facility was not in compliance and would note what work had to be done in order for a facility to become compliant with the code.

If his portable printer was working he would print the form at the site. If the printer was not working he would print it out at the home office and fax it to the facility. The reports would also be forwarded to the TSSA. [44] Mr. Heyworth had dealings with the defendants for several years. On November 9 th , 2006 Mr. Heyworth was assigned by his manager, Mike Scarland, to attend one of the defendant’s propane facilities located at 54 Murray Road in Toronto to ensure that the defendants understood the Director’s Order of October 2006 regarding truck-to-truck transfers of propane.

The TSSA had been receiving a lot of complaints from competitors in the propane distribution industry alleging that the defendants had been using truck-to-truck transfers to increase their propane storage capacity without paying the required fee for that increase and without having to build increased storage capacity. [45] Mr. Heyworth met with Mr. Ben-Moshe at the site and they accessed the TSSA website and viewed the Director’s Order. Mr. Heyworth went through the Order with Mr.

Ben-Moshe and advised him that the defendants would no longer be able to fill the smaller Discount Propane bobtail trucks with propane from the larger cargo liners. Mr. Heyworth described a cargo liner as a larger tractor trailer unit that carries large volumes of propane whereas a bobtail or bulk truck is usually a single-axle unit or a tandem rear axle that has a tank on it and would carry a maximum volume of 4,000 USWG. Mr. Ben-Moshe didn’t object to the prohibition during their meeting. In cross-examination Mr. Heyworth did not recall if he placed a telephone call to Mr.

Alonzo of the TSSA during the meeting. [46] Mr. Heyworth prepared a “Fuel Safety Inspection Report” dated November 9, 2006. Item number 4 of that report required that Sunrise Propane comply with the Director’s Public Safety Order dated October 27, 2006 by November 30, 2006. In cross-examination Mr. Heyworth said that the November 30, 2006 compliance date was an error and it should have been November 9, 2006. There were three other deficiencies noted in that report. Item number one noted that an employee was working at the facility and did not have the required training for filling propane cylinders.

In cross-examination Mr. Heyworth agreed that the employee who was not trained on November 9, 2006 did get trained shortly thereafter. Unfortunately Mr. Heyworth did not keep his rough notes of the November 9, 2006 inspection. [47] Item number two referred to a transfer hose used for loading and unloading propane that was connected to the body of a cargo liner on a reel and was unattended. The danger posed by this is that a person could get into the truck and drive away with the hose connected. The third deficiency involved a truck parked without an approved braking method.

There were no chock-blocks placed behind the wheels. The three other items were to be brought into compliance on the same day. Mr. Heyworth explained that everyone has the ability to appeal an Order made by an inspector. If there is an appeal the Director can rescind the Order if the Director feels that it is appropriate. As far as Mr. Heyworth was aware there was never an appeal of the inspection Orders he made that day. [48] Mr.

Heyworth was asked to attend a meeting at the 54 Murray Road location later on in November of 2006 regarding drawings for a 30,000 USWG propane storage tank that the defendants were considering building at the 54 Murray Rd site. Mr. Heyworth’s recollection was that Mr. Ross, Mr. Ben-Moshe, Mr. McCullough and Mr. Mizlitsky were there. However, he was not certain that Mr. Mizlitsky, Mr. Ben-Moshe’s dispatcher, was in attendance. [49] Mr.

Heyworth’s recollection was that the purpose of his invitation to the meeting was for him to review the drawings of this 30,000 USWG tank to see if there was anything that was a problem. He conceded that he didn’t recall much about the meeting as it had occurred 5 and ½ years before he was called upon to testify. TSSA inspectors are called on from time to time to do some consulting work of this nature. His understanding was that the defendants wished to increase their storage capacity as they were outgrowing the two 2,000 USWG tanks that they had been using.

He was asked if someone brought up the issue of whether or not truck-to-truck transfers could continue and his answer was “Yes, no, sorry, no, my answer to that is no”. In cross-examination he said he made a mistake when he initially said yes during his examination-in-chief. [50] In cross-examination Mr. Heyworth conceded that up until February 1, 2012 he had not recalled that the November meeting regarding the drawings had occurred. A few days prior to February 2012 he called counsel for the Crown, Ministry of the Environment, Mr. Adamson, to advise him that he now did have a recollection of the meeting. Mr.

Heyworth also said that he was aware that truck- to- truck transfers were being conducted prior to the Director’s Order coming out in October of 2006. Mr. Heyworth agreed that he had told the defendants they could continue to operate but vehemently disagreed that he said they could continue with truck-to-truck transfers. He added that he was not in a position to approve truck-to-truck transfers on behalf of the TSSA and he did not approve this procedure as a temporary arrangement until the larger tank was constructed. [51] Mr.

Heyworth was shown an affidavit of Gary Mizlitsky and was asked if there was a meeting he was at in late November of 2006 where Murray Patton, Mr. Ben-Moshe, Mr. McCullough and Mr. Mizlitsky were present. Mr. Heyworth didn’t recall Mr. Patton being at a meeting. He recalled meeting with Mr. Ben-Moshe on November 9 th , 2006 to talk about the truck-to-truck transfers but insisted that there was no discussion about these types of transfers in the next meeting in November of 2006 where the drawings of the 30,000 USWG were being discussed.

He did recall that someone asked him the question “Can we continue operating” as he left the meeting about the drawings and he recalled saying “yes”, but that was it. He meant that the defendants could continue to transfer propane from their cargo liners to their stationary tanks and fill cylinders from those stationary tanks. In his view it was Discount

Propane’s business that would be affected as they would no longer be able to transfer propane from the defendants’ cargo liners to the Discount bobtail trucks. [52] Mr. Heyworth attended at the 54 Murray Street location several times in November and December but denied that he ever saw any truck-to-truck transfers going on or that he had any discussions regarding truck-to-truck transfers. However, he did suspect that these transfers were occurring. At one point, he couldn’t recall the date, he asked Mr. Ben-Moshe if this was going on and Mr. Ben-Moshe said yes. Mr.

Heyworth did not issue a report ordering him to cease and desist. However, he denied that he didn’t issue the Order because he had given them permission to do so. Later in cross-examination Mr. Heyworth said that when he asked Mr. Ben-Moshe whether they were doing truck-to-truck transfers it was before the Director’s Order had been issued. In re-examination Mr. Heyworth said that the conversation was in the context of the prohibition of truck-to-truck transfers. [53] Mr. Key’s letter, erroneously dated July 9, 2007, was put to Mr. Heyworth. He acknowledged receiving a copy of the letter.

A suggestion was made to Mr. Heyworth that he was aware from the letter that the truck-to-truck transfers were going on. Mr. Heyworth didn’t appreciate that from the contents of the letter. The letter did not specify that the defendant would continue to conduct truck-to- truck transfers. [54] On May 29, 2007 Mr. Heyworth returned to the facility located at 54 Murray Road to conduct another inspection and noted that a delivery hose of a cargo liner was attached to the storage tank again. He issued a “Fuel Safety Inspection Report” requiring the deficiency to be addressed by June 26, 2007.

The client was charged for “double time” as this was a repeat infraction. [55] On June 24, 2008 Mr. Heyworth attended at the 54 Murray Road location for a pre-licence inspection regarding two used cargo liners that had been purchased by Discount Propane. This was the first time Mr. Heyworth had seen these two trucks. One of the trucks was unit 861. The trucks passed the inspection and a 90 day temporary licence was issued by the TSSA on July 3, 2008. The subject of truck-to-truck transfers did not come up on this day. [56] Mr. Heyworth was asked to refer to

section 7.3.1 of the code as it was written in 2005. That

section requires that an emergency shut-off valve be installed at all tank truck or cargo liner transfer locations when the tank has a capacity in excess of 5,000 USWG or if there are more than one tank that have an aggregate capacity in excess of 5,000 USWG. Mr. Heyworth understood this to mean that at the location the filling or unloading occurs there must be an emergency shut-off valve when the combined or single tank capacity is over 5000 USWG. [57] Mr. Heyworth was also referred to

section 7.3.6 of the code which sets out the mandatory means of closure for an emergency shut-off valve. Mr. Heyworth went through the three required means in the code. The first is an automatic shut-off through thermal actuation which could be either a nitrogen line made of plastic which would melt in the case of fire and automatically close the valve and stop the flow of propane. Or a facility could use a fusible link shut off which is a small piece of lead about 1½ inches long that melts at 212 degrees Fahrenheit.

If a fire occurs it would hit the lead which would melt and the valve would shut off the flow of propane as there is a spring action on the other end of the valve which would snap it shut once the lead melts. [58] The second required means of emergency shut-off is a manual shut-off from a remote location. Mr. Heyworth explained that this is a type of system that connects all of the safety valves in the plant and would be located away from the tanks. There is generally a chain attached to this type of shut-off valve and once pulled the whole plant would shut down.

This allows a person to get to a safe location to shut down the flow of propane. [59] The third required means of emergency shut-off is a manual shut-off at the installed location. This shut-off valve would be on the piping and would require a person to turn it off if there was a problem. [60] In cross-examination Mr. Heyworth said that he had met with lawyers for the TSSA regarding this explosion and that in one of the meetings he was advised that another witness was claiming that Mr. Heyworth had given permission for the truck-to-truck transfers to go on. It was suggested that in the meetings Mr.

Heyworth had said that “business would be carried out as usual” but Mr. Heyworth did not recall saying that nor did he recall saying that “the TSSA was not in the business of putting people out of business.” Meetings in November of 2006 Regarding the 30,000 USWG tank John Ross Keys [61] Mr. Keys is a professional engineer and has been the owner/operator of Alteng Inc. since 1991.

Prior to starting his own business in 1991, he worked at Superior Propane doing projects in the engineering department for a number of years. [62] He was working with Sunrise Propane in 1999 or 2000, when the company asked him to help them secure propane refill centre licenses through the TSSA. Over the years, Mr. Keys did 20-30 projects with Sunrise and Mr. Ben-Moshe had always instructed him to do things by the book. His normal contact at Sunrise was Mike Martin. Sometimes, he worked with Brent McIntyre, and occasionally he would communicate with Sean Ben-Moshe. Mr.

Keys assumed that Brent McIntyre or Mike Martin was responsible for locating sites for possible propane business for Sunrise. Most of the projects were quite small propane tank installations. [63] The code Mr. Keys refers to is the national code B149.2 “Propane Handling Code”, with the changes that apply to Ontario that Ms. Cooke had referred to earlier. Changes are made through adoption documents and the TSSA sends out pages that can be inserted into the national code that are usually coloured for easy reference.

Depending on the zoning, a site could be approved for propane storage, a refilling centre, or a filling plant. [64] In Toronto, the process involved sending a “permitted use request” to the city. He would commence filling out two application

forms that the TSSA required and include drawings with them. Mr. Keys would review these applications, refine drawings where necessary, and then send them out to Mr. Martin or Mr. Ben-Moshe for signature. Then, he would write a letter of declaration confirming that the drawings met the code and the Branch #9 TSSA standard (i.e. calculations of minimum distance required between propane storage and residential housing based on pop. density in a 75 ft. – 300 ft. radius). [65] Mr.

Keys explained that once a facility has storage capacity of more than 5,000 USWG, it can no longer be licensed under the less-restrictive category of a “refill centre”. It must obtain a full license for a “filling plant”. If a professional engineer does drawings that are stamped and sealed by him or her with a legal declaration that, in the engineer’s opinion, the site complies with the code, the company can begin construction without the TSSA’s approval.

The site must still be inspected however, before a license is issued and the site can operate. [66] A tank can only be filled and operated when a temporary license is issued. An approval letter with a license number on it from the TSSA is insufficient. An inspection must be done. A license for a cylinder handling facility permits the site to refill and store cylinders on the site. A license for a container refill centre permits the site to engage in full operations so long as its storage capacity is less than 5,000 USWG. Mr.

Key’s understanding was that the defendants were strictly involved in cylinder filling and dispensing propane for vehicles at the 54 Murray Road location. [67] In November of 2006 Mr. Ben-Moshe contacted Mr. Keys about the Director’s Order that had been issued on October 27, 2006. It wasn’t clear to Mr. Keys what the Director’s Order was – he thought it indicated that a site had to have a storage tank facility on its property that would match or exceed the volume of its largest vehicle. Mr. Keys believed Mr.

Ben-Moshe was concerned that the Order was forcing him to put in a larger facility as his two tanks held an aggregate of 4,000 USWG. [68] Mr. Keys met with Mr. Ben-Moshe on the 16 th of November and they discussed the Director’s Order together. No one else was at this meeting. Mr. Ben-Moshe wanted to get clarification on the meaning of the Order from the TSSA. Mr. Keys agreed that it seemed that a larger tank would need to be installed to comply with the Order. Propane tanks come in various sizes.

The 18,000 and 30,000 tanks are used about 80% of the time because they are easy to transport and can be mounted on skid frames. Mr. Keys recommended a 30,000 USWG tank as it allowed for more inventory control in terms of being able to dump the contents of a truck into the tank if there was a problem. The defendants decided that they wanted to upgrade their capacity at the 54 Murray Street site by installing a 30,000 USWG fixed tank and modifying their existing license. They asked Mr. Keys to assist with this application. [69] Mr.

Keys agreed to do so and started the process and wrote to the city on November 21 st 2006 to determine what the maximum storage capacity at that site would be. Mr. Keys received a letter from Mr. Ted Glass, of the City of Toronto on December 4, 2006 who confirmed that an increase in storage would be a permitted use based on the information provided by Mr. Keys previously. As the letter from the city was not definitive in terms of giving approval and did not refer to a specific amount of storage Mr. Keys wanted to make sure that a 30,000 USWG tank would be permitted. He called Mr.

Heyworth of the TSSA to see if there is something in the letter that has to be specific about the storage capacity and asked if they could meet to discuss it. He provided the letter to Mr. Heyworth and asked him to follow up with his colleagues in engineering to see if there had to be something more specific. [70] Mr. Keys met with Mr. Heyworth and Mr. Ben-Moshe on December 20, 2006 in the morning. Mr. Keys said there wasn’t really any discussion about the Director’s Order of October 27, 2006. The discussion was centred on Mr. Glass’ December 4, 2006 letter to Mr. Keys. Mr. Keys asked Mr.

Heyworth to take the letter to the head office and show it to the relevant people at the TSSA. Mr. Keys did not recall anyone mentioning truck-to-truck transfers but said it may have come up. His main concern was getting the process started for a larger tank and to convey to Mr. Heyworth that the defendants were intending to comply with the Order. He also wanted to ensure that the defendants could continue operating their cylinder filling business given that the Director’s Order said it was effective immediately and December was not the time to be shutting down a heating business. [71] In cross-examination Mr.

Keys agreed that he knew the difference between metered trucks, which could measure the amount of fuel delivered to a customer, and non-metered trucks which would have to transfer their load to metered trucks before delivering the propane to the customer. The latter would have to be done by way of a truck-to-truck transfer. In re-examination Mr. Keys said that he did not know if the defendants had metered or non-metered trucks. [72] In cross-examination it was also suggested to Mr. Keys that he knew that the defendants were conducting truck-to-truck transfers and that Mr. Heyworth told Mr.

Ben-Moshe that the business could continue on as it had been operating. Mr. Keys said that the truck-to- truck transfers didn’t really cross his mind as he was more focused on what kind of tank was required. It was also suggested to Mr. Keys that he had seen a copy of the Fuel Safety Inspector Report dated November 9, 2006. Mr. Keys said he may have seen it but did not recall if he did. The meeting concluded with Mr. Heyworth agreeing to take the letter to the head office but Mr. Keys could not recall anything specific that Mr. Heyworth had said during the meeting but agreed in cross-examination that Mr.

Heyworth had said words to the effect of “you can continue business the way you’re doing”.

[73] Mr. Heyworth called Mr. Keys a week or two after and said that he had spoken to someone at the TSSA and that they would accept the letter if Mr. Keys wanted to proceed. Mr. Keys told Mr. Ben-Moshe that the TSSA would accept the application if he wanted to go ahead. In cross-examination Mr. Keys agreed that Mr. Heyworth also told him that there would be no deadline for putting up the tank as long as the defendants were serious about doing it and that they could carry on business as usual. [74] As far as Mr. Keys recalled there was no discussion of a time frame for completion of the project.

Construction of the tank could start in the winter but it would have been costly. If the ground is frozen there are additional costs involved for heating the ground with heating equipment and using additives for the concrete to allow it to set quickly. Heating systems would also be required to surround it while the concrete cures. Mr. Keys estimated that the time required for ordering a tank with the engineer’s drawings, reviewing shop drawings prepared by the fabricator and final delivery would be approximately four to six months. It would take considerably less time to obtain a used tank. [75] After Mr.

Keys spoke to Mr. Heyworth, he informed Mr. McCullough that the TSSA was accepting the city’s letter and giving Sunrise the go-ahead for the new tank. Mr. McCullough was the contractor who was going to install the new tank. Mr. Keys was informed by Mr. McCullough that the defendants wanted to go ahead and obtain a 30,000 USWG tank and they advised him that Pro-Par Manufacturing out of Quebec would be the manufacturer. Mr. Keys wasn’t sure when he was advised of that but he thought it was in August, September or October of 2007. [76] Once the tank arrived at 54 Murray Road Mr.

Keys made a site visit on October 15, 2007 and measured the tank for his drawings. It was unusual for him to get to do measurements with the tank actually there. Normally Mr. Keys would not get a chance to see if propane tanks were actually installed as he drew them. He had that opportunity at the Sunrise site to see the locations of the original two 2,000 USWG tanks in comparison to where they would have been on his drawing. [77] Mr. Keys saw the two 2,000 USWG tanks at the 54 Murray Street location moved on October 15, 2007, but he was not aware if a modification application was actually made.

He explained that a move of the tanks from a north/south orientation to an east/west orientation would constitute a modification that required the proper approval from the TSSA in terms of paperwork, drawings, etc. The concern about moving the tanks would be ensuring that the proper set backs were being adhered to. It was suggested to Mr. Keys in cross-examination that the responsibility for the project was in his hands and he should have spoken to Mr. McCullough about the requirement for a application for a modification regarding the two 2,000 USWG tanks that had been moved. Mr.

Keys maintained that he was only responsible for the 30,000 USWG tank as he thought the others were being moved to another site. He did not ask about them when he was there. [78] Mr. Keys advised that if the two 2,000 USWG tanks were being moved a fair distance, a company would “probably” also need an Electrical Safety Authority certification of inspection and engineer-approved drawings before the tanks could be re-commissioned into service. If such an application was made he wasn’t involved.

He didn’t think that the tanks were connected as he had discussions with Mike Martin who advised him that the tanks were going to be moved to a different location. That is why he showed the total storage as being 30,000 instead of 34,000 USWG for this facility. [79] Mr. Keys proceeded with the application. The name on the application was 1367229 Ontario Inc. The same name had been used in the application for the two 2,000 USWG tanks at that site. However, on this application the name of the supplier was different and was listed as Sunrise Propane Industrial Gases. Mr.

Keys indicated that the reason for the switch was that he took the name of the supplier from recent business cards he had obtained from people affiliated with Sunrise. He had no knowledge of who owned or ran Sunrise Propane and Petroleum. [80] The application showed that applicant wanted to change the storage capacity to 30,000 USWG, making it jump from a “refill centre” classification to a “filling plant” classification. The site list provided all the set-back requirements by the TSSA along with copies of the professional engineer (Mr.

Keys’) drawings and declaration that the proposal is in compliance with Branch Standard #9 municipal approval. [81] Mr. Keys also sent a letter to the attention of Oscar Alonso of the TSSA dated July 9, 2007 declaring that the tank on the drawings would meet the Code and other TSSA standards. Mr. Keys explained that the date on the letter was a mistake and it couldn’t have been written on July 9 th because the measurements for the drawings weren’t taken until October 15 th of that year. He believes he sent this letter on October 19, 2006. According to Mr.

Keys construction couldn’t start until approval of the application had been received from the TSSA. In cross-examination he agreed that it was his idea to copy Mr. Heyworth with the letter. He explained that he wanted Mr. Heyworth to be aware the he was being named in the letter and wanted him to agree to what had happened.

[82] Mr. Keys was asked about truck-to-truck transfers and he advised that he didn’t recall discussing these with anyone. He didn’t think it was something that would be done at the 54 Murray Road site as they could deliver the propane from their cargo liners to their tanks. His understanding was that these types of transfers are not prohibited but they are not normally done. [83] In reference to his letter erroneously dated July 9, 2007 wherein he mentioned that bulk truck loading as being one of the things that would continue at 54 Murray Road.

He explained that because they were applying to be a filling plant as opposed to a filling centre he wanted to capture the types of things that a filling plant could do. He advised that at a filling plant bulk trucks can be filled and cylinders that are stored on docks and trucks can be parked on site. When Mr. Keys wrote his July 9/October 19 th 2007 letter, he didn’t think cargo liners were being loaded from Sunrise’s Murray Road site. He believed that the site was strictly a cylinder filling operation with an auto propane dispenser and a small amount of tank storage.

In cross-examination it was suggested to Mr. Keys that he had told Mr. Pate, an employee of the Ministry of Labour, that the reference to “bulk truck loading” in the letter meant truck-to-truck transfers. Mr. Keys said it was possible that he said that but he did not recall saying it. [84] Mr. Keys received a copy of a letter from Marek Kulik of the TSSA, dated November 8, 2007. The letter said that the documentation Mr. Keys provided to the TSSA for the license upgrade to a filling plant had been reviewed. Mr.

Keys took this to mean that because the 54 Murray Road license was only being upgraded, it could continue operations; however, he was unsure what exact operations could be continued until everything had been inspected. [85] Mr. Keys’ involvement with the project essentially ended after this letter was received. He was not involved in obtaining a certification of inspection from the Electrical Safety Authority. This was required, along with the engineer-approved drawings, to be presented to the TSSA inspector during their visit to inspect the final product. In cross-examination Mr. Keys agreed that he and Mr.

McCullough were responsible for making sure that the new tank was code compliant. [86] Mr. Keys was asked to describe the various emergency safety features of bulk propane plants and advised that these types of shut-off buttons are red and tend to be put in places where people have quick access to them, such as; the bulkhead where a driver would be standing, the cylinder dock where a worker would be filling cylinders and at the buildings close to the edge of yard where someone could push them if they were running out of the yard to shut down the entire plant. [87] During cross-examination Mr.

Keys advised that he was being sued by the TSSA as well as Teskey Concrete Co. Ltd., the landlord of the property. The Construction of the 30,000 USWG tank Robert McCullough [88] Mr. McCullough was called by the defence. Mr. McCullough started working in the propane industry in 1993 and learned how to install and repair propane equipment. In 1998 he eventually took over the business, Westside Services, which had been owned by his boss. Mr. McCullough is also registered as a heating fuels contractor under the TSSA which allows him to work in the fuels industry as governed by the TSSA.

Sunrise was one of his clients. He had done business with the defendants before he took over the business. Westside Services installed the propane equipment, supplied parts and equipment and re-qualified expired propane cylinders putting them back into service for the defendants. Although Mr. McCullough wasn’t certified to do inspections of trucks, he did do a substantial amount of work on the trucks at the 54 Murray Road site as well. [89] On June 14, 2008 Mr. McCullough was at 54 Murray Road and replaced the delivery nozzle and changed a leaking swivel from a hose attached to unit 1.

After completing that work he tested the delivery hose for leaks and it was fine. On June 19, 2008 he was back again and replaced the entire delivery hose as it was still damaged. Mr. McCullough was not sure why he had to go back twice in such a short time but thought he had probably noticed a problem with the hose the first time and ordered a new one as it would normally take 5 days to arrive. The manufacturer was responsible for pressure testing the hose and Mr. McCullough was responsible for testing the connections. [90] Mr.

McCullough did the original installation of the two 2,000 USWG tanks at 54 Murray Road for the defendants. He had known Mr. Keys for a number of years and they had worked together on a number of installations. Mr. McCullough was also involved in the planning for the 30,000 USWG tank. Mr. Ben-Moshe had never asked him to “cut corners” in the work he did for him and employees were authorized to contact him if they needed assistance with the equipment. Mr.

McCullough would do regular inspections on all of the equipment to make sure it was in good order; however, he was not in charge of propane safety or supervising employees who used the propane equipment and did not know who was in charge of that aspect. [91] Mr. McCullough was asked if there was a preventative maintenance system in place at the 54 Murray Road location in cross- examination. His view was that the annual inspections he did at all the sites were preventative maintenance. He had a four page checklist that he would go through and then he would provide it to Mr. Ben-Moshe. In cross-examination Mr.

McCullough said that he never

prepared invoices for the inspections because they were quick to do as the facilities were in excellent shape given that he had been working on them all year. [92] In cross-examination Mr. McCullough agreed that he had done work on other sites for the defendants and that back in August of 2008 the defendants owned 56 other sites. Some of these sites were as far away as Kingston and Ottawa. Most of the sites were cylinder fill facilities and some had auto filling capacity. The size of the tanks at these facilities was generally 2,000 USWG.

None of the other sites were as large and complicated as the 54 Murray Road site. Mr. McCullough also agreed that he spent most of his time at the other sites. The defendants were his biggest client and accounted for most of his income. When he billed them he would make the bill out to “Sunrise Propane”. As far as he was concerned the company he was dealing with was “Sunrise Propane”. [93] Mr. McCullough testified that, unlike the defendants, most companies that were in the business of propane distribution in Ontario had bulk plants and would send their trucks to Sarnia to fill up with propane.

Once back at the bulk plant they would dump the propane into a big tank and their smaller trucks would then be filled from the large tank and would then distribute the propane to customers. The defendants’ truck, unit 1, was a metered truck that could carry 14,000 USWG. [94] Mr. McCullough had also known Mr. Heyworth for a number of years as of 2006 through other projects. Mr. McCullough attended the November 16, 2006 meeting at 54 Murray Road and brought some notes to court to use to refresh his memory.

He had made the notes from a spiral notebook he had written in around the time of the events in question. [95] Mr. McCullough’s recollection was that Mr. Ben-Moshe had called him that day to attend a meeting at approximately 10 a.m. The meeting was in the boardroom and Mr. Heyworth, Mr. Ross, Mr. Mizlitsky and Mr. Ben-Moshe were also in attendance. Mr. Heyworth was there to inform Mr. Ben-Moshe of a change in the code from a TSSA Director’s Order that required Mr. Ben-Moshe to have a bigger tank in the yard. Mr. McCullough was not aware of any earlier meeting with Mr. Ben-Moshe and Mr.

Heyworth that had occurred regarding the Director’s Order. As far as he was aware this was the first one. [96] The discussion at the meeting centred on the fact that a larger tank was required because Mr. Ben-Moshe’s largest cargo liner held 19,000 USWG and the logical step would be to have a 30,000 USWG. The municipal approval and set back approvals regarding the tank were also discussed. However, he had no specific recollection of Branch Standard #9 being discussed. [97] Mr. McCullough did not recall seeing any documentation during the meeting but in cross-examination he conceded that it was possible that Mr.

Keys had brought a drawing of the proposed tank. His understanding of what Mr. Heyworth had said was that the defendants would be able to continue operating as they had been, including the conduct of truck-to-truck transfers. In cross-examination Mr. McCullough said he specifically recalled Mr. Heyworth saying that he didn’t want to put anybody out of business and that he was there to help them comply with the code changes and was telling them what they had to do to comply. Mr. McCullough conceded that he didn’t know what Mr. Heyworth’s understanding was of the day to day operations at 54 Murray Road. Mr.

McCullough also conceded in cross-examination that he did not know the extent to which the business would be affected by stopping truck-to-truck transfers would be but he expected it would be substantial. Mr. McCullough didn’t recall seeing Mr. Heyworth at the site after the November 16, 2006 meeting until after the larger tank was installed. [98] Mr. McCullough’s job was to see that the installation of the 30,000 USWG tank was completed once the approval had been given by the TSSA. On June 11, 2007 Mr. McCullough made a $10,000.00 deposit on the tank. [99] Mr.

McCullough moved the two 2,000 USWG tanks on September 15, 2007. Given that the approval for the 30,000 USWG tank had not yet come in, he was asked why he had started to move the tanks. Mr. McCullough was not clear but said he had probably received a “verbal” from Mr. Keys that everything was in place and that Mr. Keys was just waiting for the letter. It didn’t occur to him that this was a modification to the site as the TSSA and the engineer were both involved in the November 2006 meeting and it was clear from the paperwork that the new tank was going to be in the area where the two 2,000 USWG tanks were.

No one told him that he needed TSSA approval to move the tanks. [100] According the Mr. McCullough the defendants were not involved in the decision to move the tanks; however, Mr. Ben-Moshe was aware that the tanks were being moved. Mr. McCullough and Mr. Keys made the decision. In order to reorient the tanks he had to disconnect some of the piping and electrical wiring, lift the tanks with a crane and rotate them 90 degrees and then move them to the west. Once that was done he reconnected he piping. Mr. Keys was not on site when the move was being done. In cross-examination Mr.

McCullough agreed that he didn’t know if Mr. Keys was asked to make an application for a modification by Mr. Ben-Moshe. [101] The 30,000 USWG tank arrived on September 25, 2007 and Mr. McCullough discussed the installation with Mr. Ben-Moshe. The weather was bad and they both agreed that the project would be on hold until the following year. In the spring of 2008 the weather was very rainy making it difficult to get anything done and the project was delayed further. Mr.

McCullough advised that welding pipes in the rain would reduce the integrity of the metal in the pipes as they needed to cool naturally and rain would have made them brittle. Ultimately the strength and integrity of the welds would be negatively affected. He was also concerned that the very delicate technical electronic metering devices would be damaged if exposed to water and he and his co-worker did not like to work in the rain. Mr. McCullough felt that it would be better and safer if the work was done in good weather.

When the weather was good they did work on the tank installation. [102] In cross-examination Mr. McCullough agreed that it could be that the project didn’t get started earlier because he was very busy with other work and that he couldn’t blame it all on the weather. He also agreed that if Mr. Ben-Moshe had asked him to start it earlier in the rain he would have done so, but he didn’t like to make his employees work in those conditions. Once Mr.

McCullough started working on installing the tank in June he left his larger truck and all of the tools at the 54 Murray Road site and commuted using a smaller, easier to handle truck. [103] In Mr. McCullough’s opinion the 30,000 USWG tank would have been above the code requirements as Mr. Ben-Moshe was talking about putting in additional safety features that were not required. His estimate of the cost of the installation would be $300,000.00 and said that the installation of a tank that just met code requirements would cost half of that.

In cross-examination he advised that as of August 2008 he hadn’t yet gone into the planning stages for the emergency stops and hadn’t discussed them with Mr. Ben-Moshe.

[104] While Mr. McCullough was working on the 30,000 USWG tank the defendants’ workers would leave the propane hose near the tank. This was annoying to Mr. McCullough and his co-worker, Mr. Kersey, who hid the hose at one point just to annoy them. He was always in touch with Mr. Keys in terms of the work and the progress that had been made. [105] After the November 16, 2006 meeting, Mr. McCullough did a few installations for the defendants and after the explosion he continued to do work at their other 56 sites. As far as he was aware Mr.

Ben-Moshe was not still involved with those sites after the explosion as the sites were supplied with propane by another company. After the explosion Mr. Ben-Moshe had called him and told him that he would be dealing with GM Petroleum instead. When he did work at the sites he invoiced GM Petroleum and dealt with Gary Mizlitsky who had been a dispatcher for the defendants. Mr. McCullough did not know if Mr. Ben-Moshe was involved with GM Petroleum. [106] Mr. McCullough is being sued as a result of the explosion.

When asked if the TSSA was suing him he said that he wasn’t sure as there were many names on the statement of claim and he just forwarded it to his lawyer. Evidence Regarding Mandatory Propane Handling Training Marius Berkel [107] Mr. Berkel started working for the TSSA in the year 2000 as a senior heating inspector. In that capacity he was required to inspect gasoline stations and propane facilities. He also investigated incidents such as fuel oil spills and assisted the Office of the Fire Marshal if fuels were suspected of contributing to an incident.

In 2003 or 2004 he became the regional supervisor for South Western Ontario and had a number of people reporting to him. In 2007 he took on the role of technical specialist and his duties included dealing with incoming consumer complaints and inquiries, interpreting the code for consumers and liaising between fuel operations and the Information System (IS) department to implement any regulatory changes that were required to the inspection processes. [108] He was also in charge of dispatching TSSA employees if there was a fuel spill.

Among the employees reporting to him there were three training and certification advisors who dealt with the accredited training providers. In order to become a trainer a person would submit their training material to the TSSA for review and approval. If the material satisfied the training needs for the particular certificate the applicant would be accredited. The training and certification advisors were responsible for reviewing these applications. The applicant would then attend a “train the trainer” program. [109] The TSSA did not keep records of the names of people who have been issued records of training.

The TSSA policy document and “Training Provider Agreement” required the trainers to keep records of the people who had been trained. The “Training Provider Agreement” outlined the requirements for a training provider to be authorized to provide the propane plant operator 3 (PPO3) training. In the past the TSSA had conducted audits to ensure that the trainers were keeping records. The records of training (ROTs) were valid for a three year period from the date of the training. [110] Mr. Berkel identified a document shown to him as the “Policy and Procedures for Gas and Oil burner Technician Certification”.

There is a reference to the record of training within the document. This document would be provided to accredited training providers. Mr. Berkel advised that TSSA regulation 215 sets out the certification and training requirements for the fuels industry. The TSSA accredits training providers who teach the (PPO3) course introduced on the previous page. The TSSA does not do any training for the PPO3 certificate. Martina Collingridge [111] Ms. Collingridge was employed by the Ontario Propane Association for 12 years from July of 1997 to January of 2010.

The OPA no longer exists but was a non-profit association that assisted propane companies and individuals by speaking on their behalf to the TSSA regarding relevant regulations. The association had individual members and corporate members. To become a member one would fill out an application and pay a membership fee. [112] The OPA provided services such as an emergency response assistance plans and training programs. Sunrise Propane was one of the first members to join the OPA and ended its membership in 2008.

There was a board of directors and they would meet two or three times a year. [113] The OPA had two employees; Ms. Collingridge and Mr. Chartier, who was the President and secretary. Ms. Collingridge started at the OPA as an administrative assistant and then became an executive assistant/office manager. Generally her duties involved typing letters and memos and putting out newsletters. Later, in 1997 they took on issuing the ROTs. The TSSA was established in 1997 and took on the major responsibilities but downloaded that function.

The Ministry of Consumer and Commercial Affairs had administered the training previously and in 1997 the OPA, other companies and individuals took it on. [114] The OPA established workbooks and exams, which were approved by the TSSA, and kept a database of all people who were trained. A software program called “Lotus Approach” was purchased and Ms. Collingridge designed and created the database using it. The workbooks contained written instruction and there was an exam at the end. Hands-on instruction was also required. Members of the OPA who were qualified to train were the trainers.

The workbooks were updated on a regular basis as there were often changes to the regulations. Ms Collingridge had no

part in developing the content of the workbook; she was only required to input the updates. It was suggested to Ms. Collingridge that there was nothing in the workbook as to what one would do if they saw an unknown cloud coming from a location. She was not able to answer the question. [115] Trainers would call and ask for the number of workbooks they needed.

For those people who passed the exam, which required a mark of 75%, the exams were sent back to the OPA and after double checking the score and ensuring that all required signatures were on the document she would input the first and last name of the person, their address, the course, an ROT number, an issue date and an expiry date. Ms. Collingridge would then print the ROT and send it to the individual. The first name and last name were entered into two different fields. The ROT number would automatically be populated on the document when Ms. Collingridge started a new ROT.

[116] Once the document had been created she would file it numerically based on the ROT number. The files were at the OPA office which had been located at 1155 North Service Road in Oakville. The ROT was a wallet-sized card and contained the holder’s name, expiry date, ROT number and license type. The OPA logo was also on the license along with the address and phone

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