His Majesty the King - v. -, 2023 SKPC 51

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 51 Date: October 20, 2023 Information: 991210762 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Brandt Industries Canada Ltd. Appearing: Ms. Buffy L. Rodgers For the Crown Mr. T. John Agioritis of MLT Aikins LLP For the Accused DECISION RE: MOTION FOR PARTICULARS D. KOVATCH , J Introduction [ 1 ] This is a companion decision to 2023 SKPC 50 given this same date. I begin by adopting the introduction given in the companion decision, and by adopting the discussion of the general law set forth in that decision. The Charges

[ 2 ] The accused is charged with four charges related to an accident that occurred on October 29, 2020, resulting in injuries to its worker, Matthew Chislett. The charges are: 1. That the employer failed to provide and maintain plant, systems of work and working environments that ensure, as far as is reasonably practicable, the health, safety and welfare at work of the employer’s workers, resulting in the serious injury of Matthew Chislett; 2.

The employer failed to make arrangements for the handling of articles in a manner that protects the health and safety of workers resulting in the serious injury of a worker; 3. The employer failed to provide any information, instruction, training and supervision that is necessary to protect the health and safety of a worker resulting in the serious injury of a worker; and 4.

The employer failed to ensure that the worker was trained in all matters that are necessary to protect the health and safety of the worker when the worker is moved from one work activity or worksite to another that differs with respect to hazards, facilities or procedures resulting in the injury to a worker. [ 3 ] The materials indicate that Mr. Chislett was a millwright. He was called in to do an inventory count. I gather that this was somewhat different than his usual work assignments. He was assigned to a group that included three other employees for this work. The employer’s brief then states as follows: 10.

The Group was initially using a forklift to conduct their inventory count prior to the morning coffee break. The Group would pick up a stack of round bars, move them to the ground, measure them on the ground, and lift them back to the A-frame structure once complete. 11. When the Group returned from their coffee break, the forklift was being used by another group. The Group decided to continue to measure bars on the A-frame that could be reached without using a forklift. 12. During the course of their work, a tape measure became trapped in between two round bars. 13.

One of the workers in the Group proceeded to retrieve a prybar and use it to open the gap between the round bars to try and free the tape measure. While doing so, one of the round bars rolled off the A-frame storage structure and fell onto Mr. Chislett’s right leg. Analysis of Application [ 4 ] In the case of Mr. Aspen, I was able to read the charges, read the materials, and easily determine what the Crown’s theory or argument was.

That led me to conclude that particulars were not required to inform the accused and his counsel of the case that the accused had to meet. [ 5 ] Following an identical form of analysis in this case, I come to exactly the opposite conclusion. I am not able to ascertain what it is that the accused is alleged to have done or to have omitted doing that resulted in this accident and injury. The mere existence of the accident and injury does not instantly point to a breach of duty by the employer resulting in the injury.

For example, I would not instantly or easily conclude that doing an inventory is inherently dangerous and the accident arose from the employer assigning inherently dangerous work. In relation to the first count, I do not know what plant systems of work or working environment were appropriate or inappropriate, or what about them was in breach of the duty or contributed to the accident and injury. [ 6 ] The second count alleges that they failed to make arrangements for handling of articles in a manner that protects the health and safety of workers. What articles were handled in an unsafe manner?

What it is that the employer did or did not do that resulted in the articles being handled in an unsafe manner and injury to workers. Is the allegation that it was unsafe to do the inventory count while

the round bars remained on the A-frame and had not been moved to the ground? Is the allegation that the use of the prybar to create space between the round bars was inappropriate and unsafe? [ 7 ] In the third count it alleges that the employer failed to provide any information instruction training and supervision necessary to protect the workers. Are they alleging the employer failed to provide them with a calculator or a tally sheet so that they could properly do an inventory count? That would seem highly unlikely.

Are they alleging that they did not provide instruction as to how to reach articles stored in higher locations, for the purpose of conducting the count? [ 8 ] In the fourth count, it is alleged they failed to ensure that a worker was trained in all necessary matters before being moved to a different work area. Are they alleging that the worker needed special training to do an inventory count? Are they alleging that this new work area is inherently dangerous and special safety training should have been provided before the worker was dispatched to that area?

Are they alleging that the worker was required to do some specific task that he was simply not trained to do? [ 9 ] In the Aspen case, I stated that the Crown was not required to specify precise areas of training or information that it says were not provided. I stated that to require such particulars would conflate the requirements for a valid charge with the due diligence requirements on the employer pursuant to the Act. I reiterate those comments here. The Crown need not provide particulars alleging what system or working arrangements were required and the employer did not meet.

The Crown need not specify precise requirements for the handling of such materials and how those requirements were breached. The Crown need not specify precisely what training was necessary and needed to be provided. However, in my view, the Crown must state a relatively specific allegation that the employer was required to do a particular act and failed to do it, or performed some act that was in breach of duty, and that as a result of the employer’s action and breach, there was an accident resulting in an injury to a worker.

The charge must be framed along these lines so that the accused can read the charge and ascertain the actus reus of the alleged offence. Armed with that knowledge, the accused will then be in a position to defend itself by asserting that the Crown has not proved the actus reus , or to prove due diligence with respect to the duties imposed upon it. [ 10 ] As a result, I direct the Crown to particularize the counts in Information 991210762.

I direct the Crown to identify specific acts or actions that the employer was required to perform and failed to perform, or identify acts or actions of the employer that breached a specific duty, and allege that the breaches resulted in an unsafe situation for a worker and the injury to Mr. Chislett. Dated at the City of Regina, in the Province Saskatchewan, this 20 th day of October 2023. ____________________________ D. Kovatch, J