Her Majesty the Queen - v. -, 2014 SKPC 59

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 059 Date: March 25, 2014 Information: 24424956 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dura Construction Ltd. Appearing: Mr. Bruce Bauer, Q.C. For the Crown Mr. John Williams For the Accused Corporation DECISION RE: MOTION TO QUASH INFORMATION D. KOVATCH , J [ 1 ] Dura Construction Ltd. is charged that on or about August 25, 2011, at or near Weyburn, Saskatchewan, it did fail to ensure that all work at a place of employment (to wit: the Young’s Equipment building) was sufficiently and competently supervised as required by s. 17(1)(

a) of The Occupational Health and Safety Regulations, 1996 , by failing to ensure that workers used fall protection, and did thereby contravene s. 57(

b) and 58 of The Occupational Health and Safety Act, 1993 . Defence counsel made application to quash the Information on the basis that the Information was duplicitous and was a nullity. Counsel also argued that the Information is a nullity and as a result I have no power to direct an amendment of the Information. In response, Crown counsel, Mr. Bauer, argued that the Information is not duplicitous. He argues that the Crown has simply provided adequate particulars of the alleged infraction, as it was

obligated to do. Alternatively, Mr. Bauer says that if I determine the Information is duplicitous, I should then direct an appropriate amendment. [ 2 ] Mr. Williams says that the Information alleges that his client failed to ensure the workplace was sufficiently and competently supervised and that this, in and of itself, is an offence contrary to s. 17(1)(

a) of The Occupational Health and Safety Regulations . He says the same Information alleges that his client failed to ensure that workers used fall protection and that this is a separate and independent offence contrary to s. 57 and 58 of the Act . Because two separate and distinct offences are alleged in the same Information, the charge is duplicitous and must be quashed. [ 3 ] If I simply read s. 17 of the Regulations and s. 57 of the Act , there is a certain merit or appeal to his argument.

However, in my view, I must read the Act and Regulations in their entirety and bear in mind the goals and purpose of the legislation. I have to determine the obligations placed upon the employer in light of the goals and purpose of the legislation and bearing that in mind, look at this Information to see if one or two offences are alleged. When I examine the legislation and Regulations in entirety, and look at this charge in relation to the whole of the legislation, the defence argument loses merit, and I am compelled to agree with Mr.

Bauer that the Information properly particularizes the allegation. [ 4 ] The clear goal of The Occupational Health and Safety Act is to provide for safe workplaces, and to provide for the safety of workers while at work. The legislation attempts to do this by establishing a number of practices and procedures applicable to all or particular workplaces, and by imposing a number of duties and obligations on employers, employees, contractors, etc.

The legislation also establishes a number of offences for engaging in certain practices or procedures, or for failing to meet a particular duty or obligation imposed by the Act .

Section 57 is the offence and penalty

section and it provides that a person can be guilty of an offence if he fails to discharge a duty imposed upon him, if he contravenes a Regulation , if he fails to meet a requirement of the Act , if he fails to comply with an order, decision or direction made pursuant to the Act or Regulation , etc. Clearly this

section is cast in very general terms to make it applicable to the entire Act and Regulations . It seems to me that if this Information simply alleged that Dura Construction committed an offence by contravening a Regulation , contrary to s. 57 of the Act , such an Information would be highly objectionable. How could the accused possibly know what was being alleged against him. Clearly, further particulars must be required. [ 5 ]

Section 17 of the Regulations reads as follows: 17(1) An employer or contractor shall ensure that: (

a) all work at a place of employment is sufficiently and competently supervised; ... [ 6 ] Mr. Williams argues that failure to supervise is an offence of itself and one of the offences alleged in this Information. However, to conclude that, I have to disregard a complete reading of the legislation and Regulations . Surely, an employer could not be charged with failing to provide adequate supervision because he allowed all of the employees to go home on a particular day.

Surely an employer could not be charged because he did not have an adequate financial accounting system, or was paying somebody too much or too little. It seems to me that the duty placed upon the employer pursuant to this Regulation is to competently supervise the work site to ensure compliance with the Act and Regulations . It is a duty to see that proper practices and procedures are in place so that a safe workplace is maintained. [ 7 ] Having examined these obligations in the legislation, I return to the Information in this case.

That Information alleges that Dura Construction Ltd. committed one offence of contravening a Regulation , contrary to s. 57(

b) of the Act . The Regulation that is contravened is s. 17(1)(

a) which requires the employer or contractor to ensure that the place of employment is sufficiently and competently supervised. In what respect did the employer fail to competently supervise the work site? It failed to ensure that the workers used fall protection. In my view, only one offence is alleged. The Information is clear and properly alleges particulars, so that the accused knows exactly the charge it is required to meet. As a result, I will require the accused to enter a plea to that charge.

When the matter proceeds to trial, I will require the Crown to prove all of the particulars that it has alleged in the Information. [ 8 ] Because of my determination that the Information is proper and is not duplicitous, I need not deal with the issue of whether the Information will be quashed or could be amended.

[ 9 ] Dated at Weyburn, Saskatchewan this 25 th day of March, 2014. D. Kovatch, J