Her Majesty the Queen - v. -, 2021 SKPC 25

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 25 Date: March 30, 2021 Information: 991080127 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - BLS Asphalt Inc. Appearing: Buffy L. Rodgers For the Crown T. John Agioritis For the Accused DECISION M.R. BRASS, J INTRODUCTION [ 1 ] BLS Asphalt Inc. (BLS) is a landscape construction and asphalt paving corporation amalgamated in Saskatchewan on August 22, 2007. The nature of its business is the manufacturing of various grades of gravel and rock.

BLS has a number of worksites with one gravel pit near Ceylon, Saskatchewan. At the Ceylon crusher gravel pit, BLS has three conveyer belt systems that move rocks to crushers that in turn make various grades of gravel.

[ 2 ] On November 22, 2017, Mr. Troy Lucyk was a BLS employee working as a loader operator at the crusher gravel pit near Ceylon when a chute became clogged with rock and sand. Mr. Lucyk went to assist his supervisor remove the clogged chute by jumping up onto an uncovered frame over a moving tail pulley. He somehow then slipped. As a result, Mr. Lucyk died by exsanguination when his leg became entangled in the tail pulley. [ 3 ] After an investigation conducted by the Occupational Health and Safety Division of the Ministry of Labour Relations and Workplace Safety, BLS was charged on Information 991080127 that on or about the 22 day of November 2017 at or near Ceylon, Saskatchewan did:

(1) Being an employer fail to provide any information, instruction, training and supervision that is necessary to protect the health and safety of workers at work as required by s. 12 (

c) of The Occupational Health and Safety Regulations , 1996 , resulting in the death of a worker, namely Troy Lucyk, contrary to ss. 3 - 78 (

g) and 3 - 79 of The Saskatchewan Employment Act .

(2) Being an employer, fail where reasonably practicable, to ensure that stopping devices on a machine are located in the direct view and within easy reach of the operator and readily identifiable as required by s. 135(2) of The Occupational Health and Safety Regulations, 1996 , resulting in the death of a worker, namely Troy Lucyk, contrary to ss. 3 - 78 (

g) and 3 - 79 of The Saskatchewan Employment Act .

(3) Being an employer, fail to provide an effective safeguard where a worker may contact a dangerous moving part of a machine as required by s. 137(1) (

a) of The Occupational Health and Safety Regulations, 1996 , resulting in the death of a worker, namely Troy Lucyk, contrary to ss. 3 - 78 (

g) and 3 - 79 of The Saskatchewan Employment Act . [ 4 ] The Crown was represented by Ms. Buffy Rodgers and the accused was represented by Mr. John Agioritis. The accused has pled not guilty to all three counts that are before the Court. FACTS [ 5 ] On November 22, 2017, RCMP Constable Lyndon Lanoie was dispatched to a complaint of a deceased male in a gravel pit near Ceylon, Saskatchewan at around 10:30 a.m. Mr. Lucyk was identified as the deceased worker. Constable Lanoie attended the site and observed that Mr.

Lucyk’s right leg had been caught up on what he described as a drum rotor or a drive system of a conveyor belt, referenced above as the tail pulley. Constable Lanoie described that Mr. Lucyk’s leg had been pulled in all the way up to his hip and the leg appeared to be dislocated from the hip socket. The leg became wrapped around the mechanism. The fire department attended the scene and needed to break down the mechanism to free the leg. Mr. Lucyk was freed from the machine at 6:15 p.m. In the meantime, his body had been supported in the bucket of a frontend loader.

Constable Lanoie interviewed the tower operator, Mr. Mike Johnston and observed him to be in shock. Constable Lanoie took a series of 26 photographs, marked Exhibit P-1, Tab 2, that showed the site, the conveyor system and Mr. Lucyk entangled in the tail pulley. [ 6 ] Occupational Health and Safety (OHS) Officers Grant Barnsley and Kent Rhodes along with other members of the inspection and investigation teams were notified of the incident and attended to the crusher gravel pit. Officer Rhodes took several photographs of the scene.

A series of 20 photographs, marked Exhibit P-1, Tab 3 taken by Officer Rhodes, showed the Ceylon site, including the entire conveyor belt system, the crusher, the separator, the chute, the trailer van and tower from various angles and views. The photos also show the tail pulley involved in the incident and the other conveyor systems and tail pulleys on site. Officer Rhodes observed that there was no safeguard in place on the tail pulley involved in the incident and that there was a gap between the tail pulley and the side of the conveyer belt.

There were also photos of another tail pulley on site that had a cover installed. [ 7 ] Mr. Brian Holmgren, the loader operator responsible for feeding the crusher and cousin to Mr. Lucyk, indicated that Mr. Lucyk had worked for BLS for approximately six months as a stockpile loader operator stockpiling material. On the morning of the incident, he travelled to work from where he was staying in Ceylon to the BLS crusher gravel pit with four other crew members in the work truck. Those riding in the truck included Mr. Holmgren, Mr. Lucyk Mr. Johnston, and two other workers.

This was an operation that ran 24 hours with two 12-hour shifts and workers working a hitch

schedule of ten days on and four days off. The Ceylon crusher gravel pit was set up for production on November 7, just over two weeks before the incident. [ 8 ] On the evening before, Mr. Johnston, Mr. Lucyk and others met at a restaurant after work. Mr. Johnston thought that Mr. Lucyk had about the same amount to drink as he had, which was about two to three beer. He did not recall whether Mr. Lucyk had eaten. He believes that Mr. Lucyk may have had another three beer after they went to the room they were staying in. Mr. Johnston indicated that he and Mr.

Lucyk were together between 7:30 p.m. to 11:00 p.m. before turning in. Mr. Johnston did not see Mr. Lucyk consume any illicit substances at any time the night before or the next day. Mr. Johnston and Mr. Holmgren both testified that Mr. Lucyk was not impaired the morning of the incident.

[ 9 ] The conveyer belt system involves a number of machines and parts of machinery. First, there is a machine referred to as the “6 by 20”. It is a machine that is fed material in the crusher on one end and that separates the rock from the sand moving the separated material towards a chute. Some witnesses referred to the “6 by 20” as the shaker or as the separator. It will be referred to as the separator for the purposes of this decision. Second, a heavy equipment machine called a loader that is driven by a loader operator feeds the material into the crusher. Mr.

Holmgren was the loader operator feeding the crusher end of the separator. Another loader stockpiles material adjacent to the loader that feeds the separator. Mr. Lucyk was the loader operator stockpiling material for Mr. Holmgren. A third part of the separator is the chute at the other end of that machine. The material separated moves along through the separator and down to the chute. The next part of the machinery is at the base of the chute, is a hopper which sits over the bottom end of the conveyer belt. The belt is moved by a tail pulley that is situated under the hopper.

The tail pulley is a rotating roller with metal spokes that moves the conveyor belt 350 feet per minute. The conveyer belt then moves the material up to piles of various grades of gravel. Adjacent to the conveyer belt is a trailer van with a tower from which the entire site may be observed by the tower operator. Mr. Johnston was the tower operator. Within the tower are control switches that may start or stop the entire system or parts of the system, including one emergency stop button on the control panel.

Outside on the front of the trailer van is another emergency stop button that is a short distance next to the conveyer belt. [ 10 ] On the morning of the incident, upon arriving at the site, Mr. Lucyk took over the loader from the previous shift’s operator and started stockpiling. Mr. Holmgren took over the other loader to feed the crusher. Mr. Johnston went up to the tower to take over the tower operator position. They worked for approximately 2.5 to 3 hours before Mr. Johnston noticed that there was material starting to build up on the chute. [ 11 ] Mr. Johnston told Mr.

Holmgren over the radio to stop feeding the crusher of the separator and that he would be shutting down the separator to clear the chute. There was clogged material from the top of the chute down to the bottom. Mr. Holmgren explained that if the material they were feeding through the screener of the separator had clay or was wet, it would stick to the metal chute. Only the tower operator could see that this was happening from his position in the tower. [ 12 ] Mr. Johnston testified that there was freezing rain the night before. These conditions were normal for winter weather.

However, the freezing rain coated everything making it all slippery and icy. [ 13 ] Mr. Johnston de-energized the separator. He came down from the tower and climbed up onto the side of the separator. He proceeded to the chute and started to push the rock down manually with a shovel. Mr. Johnston faced in the direction of his right hand at the top of the chute that descended from the separator down to behind his left hand side onto the hopper and the tail pulley that was moving the conveyor belt. He testified “I was more than halfway done. And I hear a yelp or a gasp behind me.

So I looked over my shoulder and seen a pair of knuckles and a shovel hanging on to the hopper. And so I leaned over and looked, I seen Troy hanging on the hopper with his leg in the tail pulley.” [ 14 ] Mr. Johnston provided evidence that he did not request help from Mr. Lucyk to assist in clearing the chute. He further testified that he was not expecting Mr. Lucyk to be in that location. On cross-examination, Mr. Johnston agreed that there was no reason for Mr. Lucyk to be near the moving conveyor and that it was not the appropriate method for him to use to assist. Mr.

Johnston further agreed that in any circumstances, it was extremely risky behaviour for Mr. Lucyk to hop up on the ledge below the hopper. Mr. Johnston admitted that he too had done the same before and he was disciplined at that time by the superintendent for doing so. Mr. Johnston provided evidence that there were no-go zones discussed at the start of a hitch safety meeting. He did not indicate if there were actual markers for where no-go zones were situated. [ 15 ] Mr. Trevor Stromgren was filling the position as the grounds worker that day. It was his first day on the job.

The grounds worker was the person normally tasked with shovelling and cleaning out material in and around the separator and conveyor belt. [ 16 ] Mr. Holmgren indicated that prior to the incident, he and Mr. Lucyk sat for about ten minutes in their loaders and then saw Mr. Johnston come out of the tower and start unclogging the blockage himself. Mr. Johnston did not ask Mr. Lucyk or Mr. Holmgren to help. Mr. Holmgren stayed in his machine waiting. He had a full bucket ready to feed the crusher and was “waiting for the okay to keep going.” [ 17 ] Mr.

Holmgren indicated that about five or ten minutes after he was waiting for Mr. Johnston to clear the chute, Mr. Lucyk pulled his loader up and parked beside him. Mr. Lucyk then exited his loader and walked under the conveyor. Mr. Holmgren could no longer see Mr. Lucyk because he was now behind the framing of the conveyor system. Mr. Holmgren noted, “not even 30 seconds went by, I seen the belt stop. And then it started again, and I thought a rock maybe got jammed in there.” Mr. Holmgren then saw Mr. Johnston jump off the separator from where he was positioned, and start rolling around on the ground waving at him.

Mr. Holmgren testified that he jumped out of his loader and ran up into the tower and hit the emergency stop button, because there was no emergency stop on the separator. He testified “There was but they - - they never worked. They were all full of dust and everything. They would never work.”

[ 18 ] Initially Mr. Holmgren thought Mr. Johnston had fallen off the separator and was hurt. He called out on the radio to Mr. William Mayes, the Ceylon crusher gravel pit superintendent, who was just leaving the pit site to go to town and told him to come back because Mr. Johnston was hurt. [ 19 ] Mr. Holmgren went over to Mr. Johnston asking him if he was okay, but Mr. Johnston yelled at him to go help Mr. Lucyk. Mr. Holmgren went over to where Mr. Lucyk was, saw what had happened and started running to the tool shed to get a knife. He saw Mr. Stromgren and told him to run and get a knife.

When he returned with the knife, Mr. Holmgren tried to cut the conveyor belt off as he thought Mr. Lucyk was stuck in the belt. He quickly learned that this was not the case. He told Mr. Stromgren to get a pry bar but Mr. Stromgren could not find one. He had never been there before and did not know where anything was. Mr. Holmgren grabbed the oxygen acetylene torch and started cutting the frame around Mr. Lucyk. Mr. Holmgren kept cutting everything around Mr. Lucyk, but he was all tangled up. They tried to hold Mr. Lucyk up while trying to free him from the tail pulley. [ 20 ] Mr.

Holmgren testified that, “Mike probably held him up for 45 minutes, but it was already too late by then. He couldn’t hold him up, and he had a broken ankle from jumping off the conveyor.” Mr. Holmgren got a skid steer, positioned the bucket and helped Mr. Johnston lay Mr. Lucyk down into the bucket. [ 21 ] According to Mr. Holmgren, a clog would happen three or four times a shift. The way that they would unclog it was, “Stand on top of the chute and just scrape it off, the same way Mike was, the same way Troy was.” He explained that this task was usually performed by the grounds worker.

The usual grounds worker was away that day. [ 22 ] Mr. Holmgren explained that during this process the conveyor belt would be running. The conveyor belt would be left on, “Because if we scrape that down onto a stopped conveyer, it plugs that conveyor up, and then we’re down for another hour and a half, two hours. And that’s when they’re not happy.” [ 23 ] Dr. Andreea Nister was qualified as an expert in the area of forensic pathology. Dr. Nister performed the autopsy on Mr. Lucyk. She completed a biochemistry analysis in order to check blood sugar given Mr. Lucyk’s history with diabetes.

This is something that she does with all people with diabetes in order to check if it contributed to the cause of death. Dr. Nister explained that Mr. Lucyk’s glucose was within the expected range for a person with diabetes. Upon receipt of the Toxicology Report, Dr. Nister noted it was positive for various substances including cocaine. She also noted the metabolites of cocaine, benzoylecgonine and cocaethylene. Ibuprofen was also present. She determined the cause of death to be exsanguination, i.e. excessive blood loss because his leg was amputated by the equipment. [ 24 ] Dr.

Nister testified that she was able to indicate that Mr. Lucyk had alcohol in his urine, but that none was found in his blood. This would mean that he was not impaired by alcohol at the time of his death. Dr. Nister reported that Mr. Lucyk had Advil in his system. She declined to draw the conclusion that the use of Advil was for any specific reason. Dr. Nister further clarified that she was tasked to determine Mr. Lucyk’s cause of death and reiterated that he died from exsanguination. When asked if Mr. Lucyk was impaired by a drug at the time of his death, Dr.

Nister indicated that she was not in the position to answer that question. In her professional opinion, she recommended that the individuals Mr. Lucyk was with that morning should be asked what his condition was the morning of the incident. As indicated earlier, Mr. Johnston and Mr. Holmgren had both testified that Mr. Lucyk was not impaired on the morning of the incident. [ 25 ] Dr. Steven Richardson, for the Crown, and Mr. Gregory Johnstone for the defence, provided testimony for the court. These witnesses did not have the advantage of ordering drug tests on particular parts of Mr. Lucyk’s body.

Their respective reviews were based on the Final Autopsy Report completed by Dr. Nister, the Toxicology Results, the Biochemical Report, the Report of the Coroner and the court transcripts. Dr. Richardson also had Mr. Johnstone’s report in preparation of his report. Their respective reports were completed based on their own research and on their own experience. [ 26 ] The Court found their testimony to be inconsistent on whether Mr. Lucyk was impaired by a drug on the morning of the incident. Mr. Johnstone testifying, that based on his research, “it is very possible that Mr.

Lucyk ingested cocaine shortly prior to arriving at work.” Mr. Johnstone also indicated that Mr. Lucyk had a significant amount of alcohol the night before. Mr. Johnstone testified that based on his research on the effects of drugs on a person, Mr. Lucyk may have been impaired because of the 35 nanograms of cocaine per milliliter found in his blood. Mr. Johnstone acknowledged that the lab did not specifically test for cocaine in Mr. Lucyk’s entire system. Mr. Johnstone concluded in his report that, in his opinion, Mr.

Lucyk would have been significantly impaired as a result of that prior alcohol use, cocaine use and the effects of not taking insulin for his diabetes on the morning of the incident.

[ 27 ] The Court heard Dr. Richardson provide testimony that, in his opinion, on the morning of November 22, 2017, Mr. Lucyk’s brain function was not impaired by any of the compounds found in his autopsy vitreous humour, femoral blood, liver or urine sample. Dr. Richardson testified that 35 nanograms of cocaine per milliliter was well below the level that would alter brain function. [ 28 ] The Court was not convinced that either Mr. Johnstone’s or Dr. Richardson’s review of the materials were conclusive on whether Mr. Lucyk was impaired or not. The Court therefore accepts Dr.

Nister’s Autopsy Report and Toxicology Report that found that Mr. Lucyk did not have alcohol in his blood and was therefore not impaired by alcohol. The Court also accepts Dr. Nister’s findings in relation to Mr. Lucyk’s blood glucose was that it was within a normal range for a diabetic. Finally, in relation to cocaine use, the Court accepts that Mr. Lucyk had consumed cocaine at some point but it was not proven when he may have done so. The Court accepts the testimony of the people who were with him that morning, that is Mr. Johnston and Mr. Holmgren, who both knew him well and who both testified that Mr.

Lucyk was not impaired that morning. APPLICABLE LEGISLATION [ 29 ] The Saskatchewan Employment Act , SS 2013, c S-15.1 , [ Act ] and The Occupational Health and Safety Regulations, 1996 , RRS c O-1.1., Reg 1 [ Regulations ] are applicable in this matter. [ 30 ] The charges at issue concern ss. 12 (c), 135(2) and 137(1) (

a) of the Regulations , resulting in the death of a worker contrary to ss. 3 - 78 (

g) and 3 - 79 of the Act . Those sections from the Regulations are as follows: 12 The duties on an employer at a place of employment include: (

c) the provision of any information, instruction, training and supervision that is necessary to protect the health and safety of workers at work 135(2) Where reasonably practicable, an employer, contractor or supplier shall ensure that stopping devices on machines are: (

a) located in the direct view and within easy reach of the operator; and (

b) readily identifiable. 137(1) Except where otherwise provided by these regulations, an employer or contractor shall provide an effective safeguard where a worker may contact: (

a) a dangerous moving part of the machine [ 31 ] Those sections from the Act are as follows: 3-78 No person shall: (

g) fail to comply with any provision of this Part or any provision of the regulations made pursuant to this Part. 3-79 (applicable sections cited):

(7) Subject to subsection (9), every person who is guilty of an offence mentioned in

section 3 - 78 that causes the death of or serious injury to a worker is liable on

summary conviction to a fine not exceeding $500,000.

(8) If an individual is convicted of an offence mentioned in subsection (7), the convicting judge may, in addition to imposing a fine, order that the convicted individual be imprisoned for a term not exceeding two years.

(9) If a corporation is convicted of an offence mentioned in subsection (7), the convicting judge may order that the convicted corporation pay a fine not exceeding $1,500,000 if the convicting judge is satisfied that it is appropriate to do so having regard to: (

a) the need to achieve general deterrence;

(

b) the number of previous convictions imposed on the convicted corporation; (

c) the number of previous notices of contraventions issued to, and the number of previous compliance undertakings entered into by, theconvicted corporation; and (

d) the degree of responsibility of the convicted corporation, including considering the number of employees employed by the convictedcorporation. ISSUES I. Has the Crown proven the actus reus of the three charges against BLS beyond a reasonable doubt? II. If the answer to question one is yes, has BLS established, on a balance of probabilities, that they took all reasonable steps to avoidthe commission of these offences? ANALYSIS OF ISSUES AND LAW 1. Did BLS fail to provide any information, instruction, training and supervision that is necessary to protect the health andsafety of workers at work as required by s. 12(

c) of the Regulations, resulting in the death of a worker, namely Troy Lucyk,contrary to ss. 3-78(

g) and 3-79 of the Act? [32] In order to determine what the Crown must prove to establish the actus reus of count 1 it is necessary to consider the wording ofs. 12(

c) of the Regulations and of the charge. If the meaning of the provision and charge is not clear, then they should be interpreted in amanner that is consistent with the legislation’s purpose. The purpose of safe work legislation is to protect workers. Statutory provisionsshould be interpreted generously with this purpose in mind; see Ontario (Ministry of Labour) v Hamilton (City), atpara 16 (Ont CA) [Ontario Ministry of Labour], R v Riemer, 2012 SKPC 6, 397 Sask R 105 [Riemer]. [33] The purpose of s. 12(

c) is to ensure that employers provide any information, instruction, training and supervision that isnecessary to protect the health and safety of workers at work. The Crown must prove that workers, during the course of their work, werenot provided the information, instruction, training and supervision necessary to protect their health and safety and failure to do soresulted in a situation that endangered workers and led to the death of Mr. Lucyk. [34] The Court confirms that occupational health and safety offences are considered strict liability offences.

The onus is on theCrown to prove the actus reus beyond a reasonable doubt, at which point the burden shifts to defence to establish on a balance ofprobabilities the defence of due diligence; see R v Sault Ste. Marie (City), (SCC), [1978] 2 SCR 1299 at p 1326 [SaultSte. Marie (City)]. The Crown is not required to disprove defences made by BLS; see R v Sunrise Propane Energy Group Inc. 2017ONSC 6954 at para 54. Rather, the Crown must prove the necessary elements of the actus reus as outlined in the charge; see R v ViterraInc. 2017 SKCA 51 [Viterra]. [35] The Crown focused on the activity that led to the incident.

Specifically, that activity related to cleaning the chute on which therewas excessive gravel and sand sticking to it. Unclogging the chute was not uncommon and was a task that had to be done repeatedly. Depending on the conditions, the chute may need to be unclogged daily, up to three or four times a shift, or weekly. This task usuallyfell on the grounds worker. [36] On the day of the incident, that worker was not available. The tower operator, Mr. Johnston, came down and proceeded tounclog the chute.

The Crown pointed out that all witnesses testified that at the time of the incident there was no safe work procedure forthe task of unclogging the chute. Furthermore, evidence demonstrated that cleaning out a chute was a hazardous job because it requiredworkers to climb up onto the equipment and work from precarious positions while parts of the conveyor belt system continued to run. The evidence established that no information, instruction, training or supervision on how to properly clean the chute was provided to the

workers. [ 37 ] BLS argued that the Crown’s position that workers be provided information, instruction, training and supervision specific to the task of clearing material from the chute was too narrow. Rather, what is required is that workers are to be provided these resources only in relation to the assigned duties of a worker.

BLS submitted that the employer is not the insurer or guarantor of workplace safety and cannot be expected to anticipate all risks of harm an employee might be exposed to at work, particularly those harms which an employee exposes himself to outside the course of his assigned duties; see R v Timminco L imited , 2004 ONCJ 344 [ Timminco Limited ], R v Superior General Partner Inc ., 2019 SKPC 40 [ Superior ]. [ 38 ] The Court noted that Mr. Lucyk was a loader operator and was hired to do that work. However, the Court also noted that he took on other tasks on site. BLS indicated that Mr.

Lucyk took on the task of orienting the new worker, Mr. Stromgren on his first day on the site. It was not explained to the Court whether it was part of Mr. Lucyk’s job to also train new employees, such as the new grounds worker, as part of his job as loader operator. The Court infers from this information provided by BLS that its employees’ tasks were not strictly limited to their job titles. Thus, Mr. Lucyk may have been the loader operator, but he was also tasked with orienting new employees.

As a result of employees being tasked with other jobs, the Court finds that it is a reasonable requirement that employers provide information, instructions, training and supervision for possible tasks other than those strictly defined in their job titles. Was Any Information Provided? [ 39 ] Neither the Act nor the Regulations define what is meant by “information” but it is used in the definition for “instruct”. The Crown indicated that the common meaning of the word should then be used.

The Crown cited the BLS Safety Manual, Exhibit D-1, Tab 1, Safe Job Procedures quoting page 68 of the document where “A job procedure is a written step-by-step description of how to do a job from start to finish. … A job procedure contains the appropriate safe work practices and highlights safety points.” The Crown submitted that workers performing the task of unclogging the chute were not given information necessary to protect their health and safety. [ 40 ] BLS indicated that it did provide the information, instruction, training and supervision necessary to protect Mr.

Lucyk’s health and safety while he was engaged in his assigned duties. BLS had various systems in place to ensure a safe work environment. Each employee was given a copy of the Safety Manual and a copy of the Safety Manual was available on site. The BLS safety program has been “COR certified” through the Heavy Construction Safety Association of Saskatchewan Inc. (HCSA) since 2007. BLS’s safety program received a grade of 95% during an HCSA external audit.

BLS pointed out that the Crown acknowledged the extensive training, instruction and information the workers received from BLS in its legal brief at paragraph 48. The Court noted that paragraph 48 of the Crown’s brief is more of a statement that BLS did not provide information or instruction on how to clear the chute. [ 41 ] At the time of the incident, BLS did not have a written policy or procedure for clearing a clogged chute. A job procedure document was developed by BLS for cleaning material from or off the chute after the incident, on December 8, 2017.

Was Any Instruction or Training to Unclog the Chute Provided? [ 42 ] The Crown submitted that no written instructions were provided to workers to do the task of unclogging the chute. The Crown submitted that the manner in which Mr. Johnston did the task presented a serious safety risk. He left the tower with the controls unattended while parts of the system continued to operate, including leaving the conveyer running from and below the chute that he was working on. Mr. Johnston climbed up onto the separator and stood on an edge as he pushed the rock down manually with a shovel.

He was not able to reach the sticking material by standing on the equipment’s catwalk. He was eight feet off the ground balancing on a ledge. When he was startled by Mr. Lucyk, he jumped off the structure. In doing so he suffered an injury to his ankle that required medical attention. The Crown submitted that the manner in which Mr. Johnston performed this task was inherently risky, even if he had not been startled by Mr. Lucyk. [ 43 ] The Crown pointed out that Mr. Johnston testified that he was not shown how to unclog the chute and that it was done through common sense.

He also confirmed that there was no safe work procedure for this task. Mr. Holmgren also testified that he did not receive any training for doing the task of unclogging the chute. The Crown submitted that the Court only need to look at the configuration of the equipment and the requirement that workers unclog the chute to determine that clear instructions were required to ensure this task was done in a manner that ensured the health and safety of workers. The Crown submitted that BLS did not comply with the requirement to provide such instructions.

Moreover, the general training received by workers in their orientation, annual meetings, or discussions during the job hazard assessments conducted at the start of their two week work hitch, did not provide them with the training to do the task of clearing the chute in a manner that ensured their health and safety.

[44] BLS indicated that Mr. Lucyk was hired on the recommendation of Mr. Holmgren and that he had received training through BLSin a number of areas. Workers, including Mr. Lucyk, were well aware of the risk of pinch points and no-go zones. Mr. Lucyk signed offon a number of written hazard assessments which identified these particular risks, among other risks. His knowledge was demonstratedwhen he took Mr.

Stromgren, the new grounds worker working on the day of the incident, on a site walkaround and indicated where thepinch points and no-go zones were located. [45] BLS submitted that the only applicable written procedure required by the Regulations is with respect to locking out equipment. BLS did maintain a lockout policy. Mr. Johnston may not have applied his personal lock to the separator, but he did de-energize it. Hewas not working on the conveyer and therefore did not de-energize that part of the system. [46] The Court recognizes that BLS provided instruction and training related to safety.

However, based on the testimony of theCrown witnesses and by BLS’s submissions on what instruction and training in relation to safety that was provided, it was observed thatno specific instruction or training was provided in relation to how to safely unclog a chute. This job appears to be a job normally done bythe grounds worker but one that could also be done by the tower operator and others. It also appeared to be a job that Mr. Lucyk wasprepared to undertake in the same way he was prepared to orient new employees, such as Mr. Stromgren.

Was Any Supervision Provided Concerning the Clearing of the Unclogged Chute? [47] The Crown directed the Court to the relevant sections of the Act and Regulations in considering what supervision in theoccupational health and safety context entails. Supervision is multi-faceted; see s. 3-9 of the Act and s. 17(1) of the Regulations. Thereexists a broad parameter for what satisfies the requirement of supervision.

On the day of the incident, there were two levels ofsupervision at the BLS Ceylon crusher gravel pit, including the tower operator and the crusher superintendent. [48] BLS submitted that the crushing operation was properly supervised. Each crew had a tower operator who oversaw the entireoperation. And there was a site supervisor typically present. Mr. Johnston and Mr. Mayes were both experienced supervisors, and weresupervisors as defined by s. 3-1(1)(dd) of the Act. The degree of supervision needed depends in large part on the experience of theemployees.

Accordingly, BLS submits that immediate supervision was not required where the worker has sufficient knowledge andexperience, relying on the authority of R v Canadian National Railway Company, at para 121 (Man Prov Ct)[Canadian National Railway]. [49] The Crown argued that the evidence demonstrated the importance of the tower operator’s role for ensuring the safety at thecrusher gravel pit.

This operator oversaw the entire crusher operation and could immediately push a button and shut down the system ifanything were to go wrong. [50] BLS submitted that there is no authority in legislation to require supervisors only discharge his or her duties if that person islocated in a position to observe the entire worksite. BLS further submitted that it fully discharged its duty by ensuring that there weremultiple supervisors present at the worksite during work hours on the date of the incident. That is, Mr. Johnston and Mr.

Mayes wereboth competent and properly trained and were capable of providing the necessary instruction, training and information necessary toprotect the health and safety of the workers. BLS submitted that the evidence establishes that BLS had the systems and people in placeto ensure that its workers received the necessary information, instruction, training and supervision to ensure their health and safety atwork. [51] The evidence demonstrated that Mr. Johnston, the tower operator, left his post to clean out the clogged chute.

He left part of theconveyer system running so he could scrape the clogged material into it. He indicated to the Court that he left the conveyor running withthe tail pulley so he would not have to shovel the material twice. Mr. Johnston testified there was no set of rules about leaving thetower. [52] The Crown further submitted that BLS’s written safety policy in relation to “Machine Safety” did not apply to the largestmachine of the crusher system. Alternatively, if BLS intended it to apply, it was not enforced by any level of supervision. Mr.

Mayes,the crusher superintendent, indicated that there was no problem with the tower operator leaving the tower if the plant was shut down ormostly shut down. Mr. Mayes also indicated that he had seen Mr. Johnston leave the tower for different reasons. If there was aproblem, then the emergency stop on the front of the trailer van that the control tower sat on could be used. However, the Court notedthat when Mr. Holmgren was told to shut everything down, he went all the way up to the tower to do so. The Crown submitted that theduty on the employer is to competently supervise a worksite.

Thus, the Crown submitted that because the tower operator could leave,

this establishes that BLS failed to ensure that proper practices and procedures are in place to ensure that a safe workplace is maintained;see R v Dura Construction Ltd., 2014 SKPC 59 and R v Farnham, 2016 SKCA 111. [53] BLS did highlight its Assignment of Responsibility and Accountability for Safety assigned to supervisors. They include: 1.Promote safety awareness, 2. Establish safe work procedures, 3. Instruct workers, 4. Correct unsafe practices, 5. Detect troubledemployees and problem situations, 6. Correct unsafe conditions, 7. Enforce safety rules, 8. Inspect for hazards, 9. Investigate allaccidents, 10.

Ensure proper maintenance, 11. Comply with regulations, and 12. Set a good example. [54] The evidence establishes that Mr. Johnston left the tower. As a result, there was no one to oversee the site. Had the toweroperator been there, he would have seen Mr. Lucyk and been able to stop the conveyor belt when Mr. Lucyk jumped up onto the frameover the tail pulley.

In Koch v R & G Herle Farms Ltd., 2007 SKQB 370 at para 17, the Court observed that when a worker becameentangled in a conveyor belt, the operator of the conveyor was immediately able to turn the belt off as soon as the employee got caughtbecause the operator was at his assigned post. In this case, had Mr. Johnston remained in his position he would have been able to correctthe unsafe practice Mr. Lucyk was embarking upon in attempting to clean the chute.

He would have been able to detect the problemsituation and correct an unsafe condition. [55] The Crown submitted that it has proven the actus reus of the offence that BLS failed to provide any information, instruction,training and supervision necessary for the removal of the clogged material on the chute necessary to protect the health and safety ofworkers and that failure to do so resulted in the death of Mr. Lucyk.

It was the Crown’s position that BLS did take some steps related tosafety generally but did not take all reasonable steps to provide any information, instruction, training and supervision necessary to protectthe health and safety of workers working on clearing material off the chute. [56] It is BLS’s position that the Crown has not proven the required elements of the charges beyond a reasonable doubt. BLSsubmitted that it is not enough for the Crown to simply prove that an accident occurred.

Rather, “all of the necessary elements of theactus reus, as particularized in the charge, must be proven;” see Viterra at para. 45. Therefore, no convictions can be found in respect ofthose charges. [57] BLS squarely places the blame on Mr. Lucyk for the incident and for his own death by submitting that Mr. Lucyk’s “extremely”risky behaviour, both in and outside of the work place, created an unexpected and unforeseeable hazard that was not caused by BLS’salleged failure to provide sufficient information, instruction, training and supervision; see Canadian National Railway.

Therefore, BLSsubmitted that the Crown has failed to prove that BLS’s provision of information, instruction, training and supervision caused Mr.Lucyk’s death beyond a reasonable doubt and as a result, BLS is not guilty of count 1. [58] There is no dispute that on November 22, 2017 near Ceylon, Saskatchewan, BLS employed Mr. Troy Lucyk. Further, there is nodispute that Mr. Lucyk was killed by becoming entangled in the tail pulley of a conveyor system.

On the evidence presented at trial, it isobserved that although BLS provided information on safety on the crusher site, it did not provide information, instruction, training orsupervision on the clearing of the chute that led to Mr. Lucyk becoming entangled in the tail pulley. The Court finds that the Crown hasproven the actus reus of count 1. Has BLS Established the Defence of Due Diligence? [59] Although the Crown is not required to disprove any defences that BLS may raise, the Crown did provide submissions on how thedefence of due diligence is interpreted in case law; see R v Gopher, 2017 SKQB 50.

In particular, the Crown emphasized thejurisprudence that the defence of due diligence “must relate to the commission of the prohibited act, not some broader notion of actingreasonably;” see R v Kurtzman, (Ont CA). The Crown acknowledged that BLS took some steps towards providing asafe workplace, however questioned whether BLS took all reasonable care to ensure they provided information, instruction, training andsupervision to protect Mr.

Lucyk’s health and safety in the circumstances on November 22, 2017. [60] The Crown submitted that while BLS had a lockout policy, witnesses indicated that it was not always used, or was only partiallyused when the efficiency of the operation required that they not shut down for certain small jobs to limit the impact on the productivityof the site. Further, the Crown submitted that BLS may argue that workers were provided information, instruction, training andsupervision in relation to “no-go zones” and that Mr. Lucyk breached those instructions. Mr. Johnston indicated, and Mr.

Mayes agreedthat sometimes workers would go into a no-go zone and nobody had been fired for doing so. The Crown submitted that the evidenceestablished that there was nothing identifying the area of the incident as a no-go zone.

[61] In relation to BLS Safety Policy, Orientation Power Point, Annual Orientation, HCSA training and job hazard assessment forms,the Crown submitted that along with those policies, it is another thing to ensure that day to day work practices follow these policies. Furthermore, BLS did not ensure that while workers were performing their day to day work at the crusher gravel pit that there was strictcompliance with safe work procedures, including using lockouts and enforcing no-go zones. Generic warnings had little impact on theday of the incident.

Had the conveyor been shut down or locked out, the incident would not have happened. The Crown submitted thatBLS did take some steps but did not take all reasonable steps to provide any information, instruction, training or supervision necessary toprotect the health and safety of workers in the circumstances before the Court. [62] If it is found that BLS failed to provide information, instructing, training and supervision, then BLS submitted that any failure todo so did not cause the incident.

They submit the following points were established by the facts and support that position: First, Mr.Johnston did not request that Mr. Lucyk assist in unclogging the chute. Second, Mr. Johnston was not expecting that Mr. Lucyk wouldattempt to climb the separator from the wrong access point and did not have the opportunity to correct or prevent Mr. Lucyk fromengaging in that extremely risky behaviour prior to the incident. Finally, BLS alleges that Mr.

Lucyk was under the influence of cocaineand impaired to a materially significant degree at the time of the incident. [63] Therefore, BLS submits that the provision of information, instruction, training and supervision with respect to clearing the chuteby BLS to Mr. Lucyk was not necessary. BLS did not require Mr. Lucyk to expose himself to the risks associated with that task as acondition of his employment. In regard to this statement, the Court noted that even if this was not a condition of Mr.

Lucyk’semployment, it was for others and it was not shown that there was information, instruction, training or supervision over the clearing ofthe chute provided to those employees responsible for that job.

The Court found that the grounds worker and the tower operator wererequired to clean the chute and needed more information on how to do the job without risk to their health and safety. [64] BLS submitted that this Court is not permitted to consider evidence of improvements ostensibly made in response to an accidentas a basis for a finding of liability or guilt; see R v CIC Foods Inc., 2004 SKPC 77 at para 49, 251 Sask R 249 [CIC Foods Inc.] andSuperior at para. 30.

BLS asserted that the Crown’s reference on R v Precision Drilling, 2016 ABQB 518 [Precision-QB] is reliance onevidence that is circumstantially relevant to whether an accused has exercised due diligence. BLS submitted that the logic is fallacious,especially in circumstances where an accused has been compelled to make certain improvements. BLS submitted that its compliancewith the Act and Regulations should be determined by the processes and systems it had at the time of the accident and not by BLS’sresponse to the OHS’s orders in determining BLS’s guilt in respect of the charges.

BLS argued that to do otherwise would create achilling effect on employers causing them to wait to take steps to remediate safety deficiencies before litigation has concluded. [65] CIC Foods Inc. held that evidence of post-incident improvements was “not admissible on the issue of the potential guilt orinnocence of the accused”. CIC Foods Inc. relied on Hart v Lancashire & Yorkshire R.

Co. (1869), 21 LT 261 [Hart] as quoted by theSaskatchewan Court of Appeal in Aitken and Aitken v Regina (City), (Sask CA) wherein the Court of Appeal thennoted that the quoted passage from Hart “was adopted and approved” by the Court earlier in Mackay v City of Saskatoon, (Sask CA) [Mackay], and that the principle remained valid in 1987. [66] Mackay involved an appeal by the plaintiff from the judgment of Mr.

Justice Graham dismissing the action brought under TheFatal Accidents Act, RSS 1953, c 102, on the grounds that the defendant was negligent in not properly protecting the excavation made byit at the intersection of Quebec Avenue and 36th Street in the City of Saskatoon. In Mackay, the Court of Appeal did quote Hart, as wellas Beever v Hanson, Dale & Co. (1890), 25 LJ: [10] I regret to say that nearly all the plaintiff's evidence is coloured by reference to what the defendant did after the accident, to be surethat there was no repetition of it.

We are told that the first thing a policeman did, who arrived at the scene, was to telephone theEngineer's Department to bring red lanterns. All the photographs, and there are a great many of them, were taken, of course, after theaccident, and some of them after the new precautions had been installed. There was no effort made to make the set-up after the accidentexactly as it had been before, and many pages of evidence are given to show the differences. [11] In the case of Hart v. Lancashire & Yorkshire R.

Co. (1869), 21 L.T. 261 at p. 263, Bramwell, B., wrote: People do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. Ithink that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that, becausethe world gets wiser as it gets older, therefore it was foolish before. [67] In Superior, this Court finds the following to be relevant to the current case as it not only addresses this issue but decides it:

[29] ... They [defence] also advance the argument that the fact of modified or improved procedures being adopted following an accident is not proper to consider in establishing a failure to provide a safe workplace before an accident. [30] This proposition has been considered in case law that was set out in paragraphs 44 and following of the Defence Brief.

I accept that there is much authority beginning in the nineteenth century in the United Kingdom, and much more recent authority in Canada and in Saskatchewan, for not treating subsequent safety improvements as a posteriori proof of negligence or non-compliance before adoption. In my opinion, the cases do not establish this as a rule of law but are a well-established train of judicial reasoning that points out the fallacy of such reasoning and conclusions. … . . . [38] ...

The Crown suggests that the rapid changes that did not require any new or complex resources may be considered in determining the question of whether all reasonable steps were taken to ensure safety. I accept that this proposition is not precluded by a rule of law, but that caution must be used in making such an inferential finding. [ 68 ] In the current case, the incident occurred on November 22, 2017. BLS was able to produce the Job Procedure entitled Cleaning Material From/Off Chutes by December 8, 2017.

This Job Procedure was in response to the Notice of Contravention that was issued following the inspection on the date of the incident. The Procedure complied with s. 140 of the Regulations . And, the Court can see that the rapid changes did not require any new or complex resources. [ 69 ] The Court observes that in Superior , the defendant made the changes after the accident at its own initiative and had adopted improved procedures within a day: [8] Mr.

Barnsley indicated that he could issue notices of contravention following an incident such as this where it is apparent that there was a failure to observe required safety procedures. This was not done as a contravention and was not immediately apparent. … [37] . . .

In support of this the Crown also refers to the fact that within a day the company was able to adopt improved procedures. [ 70 ] CIC Foods Inc. and Superior demonstrate that there is a fine line between using post-incident activities of the accused for a finding of guilt of the offence versus weighing such evidence when considering whether the accused used due diligence in the handling of a situation such as providing workers with any information, instruction, training or supervision over how to clean a chute of material.

The fact that there was no Job Procedure prior to the incident was weighed against the fact that it only took a matter of days to produce such a procedure, without new and complex resources in response to the Notice of Contravention.

After weighing these factors, the Court finds that BLS did not exercise due diligence in providing information, instruction, training or supervision for the safe removal of material on the chute that sat above the tail pulley. [ 71 ] The Court finds that BLS did provide information, instruction and training for each employee on safety issues related to the site and to their respective main jobs. The Court also finds that Mr.

Lucyk undertook an activity that he was not asked to do, not expected to do and was considered to be extremely risky when he entered a no-go zone and jumped up onto a ledge situated over the tail pulley in his efforts to assist Mr. Johnston. BLS could not have known that Mr. Lucyk was going to place himself at such unnecessary risk. However, the Court also finds that BLS failed in its due diligence to provide adequate information, instruction, training and supervision on the procedure for the clearing of the chute necessary to protect the health and safety of all the workers responsible for that task on the site.

Therefore, the Court finds that BLS failed to establish a defence of due diligence in response to count 1. The result was the death of Mr. Lucyk. 2. Did BLS fail where reasonably practicable, to ensure that stopping devices on a machine are located in the direct view and within easy reach of the operator and readily identifiable as required by s. 135(2) of the Regulations , resulting in the death of a worker, namely Troy Lucyk, contrary to ss. 3 - 78 (

g) and 3 - 79 of the Act ? [ 72 ] Similarly, in order to determine what the Crown must prove to establish the actus reus of count 2 it is necessary to consider the wording of s. 135(2) of the Regulations and of the charge. To reiterate, the purpose of safe work legislation is to protect workers and

statutory provisions should be interpreted generously with this purpose in mind; see Ontario (Ministry of Labour) at para. 16 and Riemer . [ 73 ] The purpose of s. 135(2) requires that employers ensure that stopping devices on machines are located in the direct view and within easy reach of an operator and that such devices are readily identifiable. The Crown must prove that BLS failed to ensure that stopping devices on machines were located in the direct view and within easy reach of the operator and readily identifiable which resulted in the death of Mr.

Lucyk. [ 74 ] The Crown highlighted the fact that the tower at the BLS job site housed the controls and stopping devices for the majority of the crusher operation. Mr. Holmgren provided testimony that there was an emergency stop on the outside of the trailer. However, Mr. Holmgren provided further testimony that he had to run all the way up into the tower to hit the emergency stop. The Crown submitted that had the tower operator remained in the tower, the controls would have been in direct view and within easy reach. [ 75 ] The Crown submitted that had Mr.

Johnston been in the tower, he presumably would have observed Mr. Lucyk to be in danger of becoming entangled in the tail pulley and he would have hit the emergency stop or other stopping device controlling the conveyor. Moreover, Mr. Johnston was permitted to leave the tower to work on clearing the chute while leaving other equipment running. The Crown submitted that there was a requirement that there be a stopping device located within the direct view and within easy reach of the operator or others working around the equipment when the tower operator was away from the tower controls.

The Crown submitted that it has proven beyond a reasonable doubt that stopping devices were not located in the direct view or within easy reach of the operator who exited the tower. Therefore, BLS has not met its onus to show that it has taken all reasonable care nor has it shown that it was not practicable or not reasonably practicable to do more than was actually done to satisfy the duty or requirements pursuant to s. 3 - 8 (

a) of the Act . [ 76 ] It is BLS’s position that mere proof of the incident and injury is not sufficient to establish the actus reus of the offence and breach of the duty to ensure that stopping devices on a machine are located in the direct view and within easy reach of the operator and readily identifiable as required by s. 135(2) of the Regulations .

Rather, BLS submitted that the Crown is required to prove beyond a reasonable doubt that BLS failed to ensure that there was a readily identifiable stopping device for the separator and conveyor located in the direct view and easy reach of the tower operator which resulted in Mr. Lucyk’s death. Mr. Johnston was the tower operator and had he been in his proper position in the tower, then a stopping device would have been within his reach. BLS therefore submitted that it satisfied its duty under s. 135(2) of the Regulations . [ 77 ] The Crown cited Mr.

Mayes’ testimony where he indicated that he did not believe it mattered whether Mr. Johnston or Mr. Lucyk were able to stop the tail pulley from any kind of emergency stopping device near the tail pulley because the “belt runs at 350 feet a minute. By the time you would have hit a button, unfortunately, it would have been the same result.” The Crown argued that if the Court finds that it would not have made any difference in preventing Mr.

Lucyk’s death, the Court should find BLS guilty of the lesser included offence. [ 78 ] BLS submitted that the discrete legal question at issue is whether BLS failed to provide a readily identifiable stopping device located within the direct view and easy reach of the tower operator.

BLS interpreted the Crown’s position that because the tower operator was permitted to leave the tower leaving some equipment running that there should be stopping devices available to the operator and others working around the equipment to mean that it is requirement that stopping devices be available to all workers, in all locations where they may conceivably be placed. BLS submitted that the legislation would have explicitly included this requirement if that was its intention. [ 79 ] BLS submitted that the Regulations did not require an emergency stop to be located in the area that Mr.

Lucyk was found for the following reasons: First, Mr. Lucyk was not the “operator” of the conveyor. Second, Mr. Lucyk was found in a no-go zone where employees are only permitted to be in if all the equipment has been locked out. Mr. Lucyk knew that the area was such a zone because he identified the area to Mr. Stromgren when Mr. Lucyk walked him through the site. Third, an emergency stop would not have prevented the incident because the tail pulley was running the conveyor belt at 350 feet per minute.

BLS submitted that the evidence does not establish a causal connection between the alleged failure to provide a stopping device and Mr. Lucyk’s death. Therefore, the Crown has not proven the actus reus of count 2 beyond a reasonable doubt on either the offence as charged or the lesser included offense of failing to provide a readily identifiable stopping device within reach of the tower operator. [ 80 ] The Court finds that the facts establish that the tower operator was not in the tower and therefore not near a stopping device. The Court observed that Mr. Johnston indicated that when he heard Mr.

Lucyk, he could see Mr. Lucyk’s hands still gripping the frame. The Court was left wondering what the result would have been had a stopping device been within his reach at that moment. Notwithstanding that question, had Mr. Johnston, as the supervisor supervising the site and the tower operator, not left his post a stopping device was in direct view and readily available. The legislation requires that an employer ensure that a stopping device on machines are located in the

direct view within easy reach of the operator and that it is readily identifiable. The evidence shows that this was fulfilled when the tower operator is at his post. As a result, the Court finds that the Crown has failed to establish the actus reus of count 2. 3. Did BLS fail to provide an effective safeguard where a worker may contact a dangerous moving part of a machine as required by s. 137(1) (

a) of the Regulations , resulting in the death of a worker, namely Troy Lucyk, contrary to ss. 3 - 78 (

g) and 3 - 79 of the Act ? [ 81 ] Again, in order to determine what the Crown must prove to establish the actus reus of count 3 it is necessary to consider the wording of s. 137(1)(

a) of the Regulations and of the charge. The purpose of safe work legislation outlined in s. 137(1)(

a) requires that employers provide an effective safeguard where a worker may contact a dangerous moving part of a machine. The Crown must prove that BLS failed to provide an effective safeguard on the tail pulley, being a dangerous moving part of the conveyor, which resulted in the death of Mr. Lucyk. [ 82 ] The Crown highlighted that Mr. Mayes indicated that there was no guard on the tail pulley that Mr. Lucyk was entangled in. He agreed that if a person got too close to an unguarded tail pulley, they or their coveralls could get caught in it.

He agreed that if a person slipped, tripped or fell, presumably near it, they could fall into an unguarded tail pulley. Mr. Mayes never had an engineer or consultant come out to the site to assess what precautions should be taken with respect to tail pulleys on the conveyers. [ 83 ] Officer Barnsley took photographs from various angles of the uncovered tail pulley Mr. Lucyk was caught in. From the other side of the tail pulley Mr. Lucyk was caught in, the frame had mounting holes that were photographed. Officer Barnsley thought those holes were the anchoring points to bolt a safeguard in place.

Other similar tail pulleys on site did have safeguards or covers in place. Officer Barnsley directed BLS to stop work through a “stop work order” on a Notice of Contravention based on a failure to provide effective safeguards. The order stayed in place until January 26, 2018 when Officer Barnsley inspected the site and observed a safeguard now in place.

For these reasons, the Crowns submitted that it proved beyond a reasonable doubt the actus reus for count 3. [ 84 ] With respect to this alleged breach, BLS submitted that mere proof of the incident and injury is not sufficient to establish the actus reus of the offence and a breach of a duty set out in s. 137(1) (

a) of the Regulations . Rather, s. 137(1)(

a) requires more than mere proof of an incident and death. BLS submitted that a finding of guilt of count 3 requires the Crown to prove that BLS’s alleged failure to “provide an effective safeguard where a worker may contact … a dangerous moving part of a machine” resulted in Mr. Lucyk’s death beyond a reasonable doubt. BLS references The Legislation Act , SS 2019, c L-10.2 , s 2-30(1)(

c) definition for “may” that “shall be interpreted as permissive and empowering”. BLS submitted that the obligation to provide an effective safeguard on a machine under s. 137 (1) (

a) of the Regulations only arises where a worker is “permitted” or “empowered” by virtue of their assigned employment duties to come into contact with a dangerous moving part of a machine. [ 85 ] BLS submitted that none of its employees would have been permitted to approach, let alone make contact, with a moving tail pulley on a conveyer, on any of its worksites. The evidence at trial was that the area near the tail pulley of the conveyer was a “no-go” zone that Mr. Lucyk knew about. Further, Mr.

Lucyk was not asked to assist to unclog the chute and had no reason to be in the position of being near the moving conveyor. Cleaning the chute did not form part of Mr. Lucyk’s duties and BLS did not expect him to perform this task. BLS relies on R v 654963 Alberta Ltd . ( Brovac Mobile Vacuum Truck Services ), 2019 SKPC 12 at para 27 to assert that the incident would not have occurred but for Mr.

Lucyk leaving his loader and putting himself at risk of being in direct contact with the tail pulley. [ 86 ] BLS further quoted Timminco Limited , at para. 49 : Not only would it not form any part of his job duties it was expressly forbidden by the employer through the supervisor staff. Similarly, there is no reason why any worker should have reason to have “inadvertent” contact with the moving beam. BLS submitted that the Crown, therefore, failed to establish that a worker “may contact” a dangerous moving part of a machine and count 3 should be dismissed. [ 87 ] The Court observed that the pit supervisor, Mr.

Mayes, provided evidence that there was no safeguard over the tail pulley. He acknowledged that a person could get caught in it if a person got too close to it. Mr. Mayes also provided evidence that he did not have an engineer or consultant come out to the site to assess what precautions should be taken in regards to the tail pulleys. The photo evidence showed other tail pulleys that did each have a safeguard installed. The tail pulley that Mr. Lucyk got entangled in did not. The

Court accepted the evidence that the frame over the tail pulley had anchoring points where a safeguard may be secured. The Court alsoaccepted the evidence that other workers worked in and around that tail pulley. For instance, the grounds worker or the tower operatorwere responsible to clear the chute that was near the moving tail pulley. If those workers slipped from their inherently risky positionsabove or along the chute, they could be pulled into the moving tail pulley that lacked a safeguard. Therefore, the Court finds that anyemployee near that tail pulley without a safeguard was at risk of harm.

On November 22, 2017, it happened to be Mr. Lucyk’s riskybehaviour that demonstrated the full extent of the risk posed by the uncovered tail pulley. Has BLS Established the Defence of Due Diligence? [88] The Crown submitted that BLS failed to demonstrate on a balance of probabilities that it was duly diligent when it did not installa safeguard or cover on the tail pulley. The Crown submitted that BLS suggests that it was not required to ensure a safeguard on the tailpulley that Mr. Lucyk was entangled in.

No evidence was provided to explain why this tail pulley did not have a cover like the two othertail pulleys at the crusher gravel pit. The Crown submitted that a no-go zone, without a more tangible cordoning off to prevent entry, isnot sufficient protection that demonstrates BLS took all reasonable care to avoid the offence outlined in count 3. [89] The Crown submitted that one of the factors to consider when determining whether an accused has taken reasonable care is theissue of foreseeability.

The test is not whether a reasonable person in the circumstances would have foreseen the accident happening inthe way that it occurred. The Crown relies on R v Rio Algom Ltd., (Ont CA) for the applicable test to be used todetermine whether BLS has taken the care which a reasonable person might be expected to take in these circumstances.

That is, the testis whether a reasonable person in the circumstances would have foreseen that an open tail pulley could be dangerous, and if so whetherBLS proved it was not negligent in failing to check the extent of the danger of the tail pulley in order to consider and determine whetherit created any potential source of danger to employees and in failing to take corrective actions to remove the source of danger. [90] The Crown further submitted that count 3 is a specific duty offence. Unlike general duty offences, foreseeability of danger forspecific duty offences plays a lesser role.

Rather, the existence of ss. 135(1) and 137(1) of the Regulations in themselves predict that aworker will suffer harm where stopping devices on machines are not located in direct view or within easy reach of the operator or willsuffer harm when a worker comes in contact with a dangerous moving part of a machine. The Crown submitted that Mr. Lucyk did notdeliberately injure himself. He became entangled in the unguarded equipment. A worker becoming entangled in an uncovered tailpulley was foreseeable and this is precisely the reason for the requirement that such pieces of machinery be guarded.

The Crown furthersubmitted that there is insufficient evidence for this Court to conclude that Mr. Lucyk was impaired, suffering from any medical issuesdue to diabetes or that he was hungover. [91] The Crown pointed to the fact that BLS complied with the OHS orders to develop a safe job procedure for the task of cleaningthe chute. The evidence showed that the tail pulley at issue now had a safeguard in place. The Crown relied on Precision-QB, leave toappeal granted at R v Precision Drilling Ltd. 2017 ABCA 47 quoting Alberta Queen’s Bench Justice J.B.

Veit at para. 26: … Where one is dealing with a strict liability offence, evidence of subsequent repair or remediation is circumstantially relevant towhether the accused exercised due diligence. Subsequent repair or remediation does not, in and of itself, prove that the pre-remediationstatus was in any way negligent or substandard.

At the end of the day, the evidence of subsequent repair or remediation will have to be weighed along with all other admissible evidenceto determine whether in fact the case is made out. [92] The Crown then submitted that the evidence that BLS developed a safe job procedure after the incident in relation to the cleaningprocedures of the chute and the guarding of the tail pulley may be properly weighed by the Court. [93] BLS is entitled to rely on the defence that on a balance of probabilities BLS met its due diligence in these circumstances. Thedefence of due diligence is codified in s. 3-80 of the Act: 3-80.

In any proceedings for an offence pursuant to this Part or the regulations made pursuant to this Part respecting a failure to complywith a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicablemeans to do something, the onus is on the accused to prove, as the case may be that: (

a) it was not practicable or not reasonably practicable to do more than was actually done to satisfy the duty or requirement; or (

b) there was no better practicable means than was actually used to satisfy the duty or requirement.

[94] Paragraph 3-1(

x) defines the term “practicable” and paragraph 3-1(

z) defines the term “reasonably practicable”: (x) “practicable” means possible given current knowledge, technology and invention; … (z) “reasonably practicable” means practicable unless the person on whom a duty is placed can show that there is a gross disproportionbetween the benefit of the duty and the cost, in time, trouble, money, of the measures to secure the duty. [95] BLS submitted that it took all reasonable precautions to avoid the events giving rise to this case.

That is, in these circumstances,BLS had a process in place and took all reasonable precautions to avoid contravening the Act and the Regulations; see Sault Ste. Marie(City) at para. 72. BLS submitted that Dickson J’s comments in that paragraph apply in these circumstances where the actions of bothMr. Lucyk and Mr. Johnston allegedly contributed to the incident on November 22, 2017. [96] BLS submitted that it had a due diligence system in place at the time of the incident that included: (

a) an at-hire training andsafety orientation for all workers, (

b) an annual training and safety orientation for all workers, and (

c) policies, procedures and jobhazard assessments relating to crushing operations. BLS also indicated that it maintained a robust hazard assessment program. Inparticular, its hazard assessments discussed pinch points and “no-go” zones such as the area where Mr. Lucyk was injured. [97] In relation to training and orientation, BLS indicated that each new hire is presented with BLS’s Safety Manual and madefamiliar with the relevant policies, standard operating procedures, hazard assessments and company values. BLS submitted that Mr.Lucyk was aware of the BLS policies and procedures. BLS pointed out that Mr.

Lucyk had attended the annual orientations held onApril 13, 2017. And, on November 21, 2017, and as noted above, Mr. Lucyk showed Mr. Stromgren the “do’s and don’ts”, includingthe “no-go” zones. [98] BLS submitted that there is a long-standing principle that evidence of changes to policies and procedures after an accident cannotbe used against an accused to establish guilt; see CIC Foods Inc. BLS disputes that such evidence is admissible. However, if it isadmissible, it is evidence only relevant to the issue of BLS’s due diligence in the circumstances.

BLS submitted that its prompt anddecisive measures of installing a tail pulley cover, albeit not specifically required under the Act or the Regulations, is further proof ofBLS’s diligence in responding to the incident to ensure the future safety of its workers from all known hazards; see R v United CeramicsLimited (1979), (ON CJ), 52 CCC (2d) 19 (Ont Prov Ct (Crim Div)). [99] BLS refers to Canadian National Railway, at paras. 98-99 for the position that it was not foreseeable that an experiencedemployee would blatantly disregard so many safety procedures. Mr.

Lucyk was an experienced heavy equipment operator with morethan a decade of experience working on gravel crushing operations. As indicated, Mr. Lucyk informed Mr. Stromgren to avoid theconveyor’s moving parts in case he got “sucked in”.

BLS relies on the CIC Foods Inc. case where the employer was charged withfailing to maintain safeguards, the Court found that the employer had exercised due diligence and held that the employee had largelybeen the cause of her own accident. [100] In Ontario (Ministry of Labour) and R v Dofasco Inc., 2007 ONCA 769, 87 OR (3d) 161 [Dofasco] the employee who was injuredfailed to follow the proper work procedures and the employer was charged with failing to provide a safeguard.

BLS distinguishesDofasco from the present case by arguing that the employee in the Dofasco case was acting in the furtherance of his assigned job tasks. BLS submitted that where an employee does work that is not that employee’s assigned task, then the employer ought not be held responsible for the employee’s actions; see R v Lonkar Well Testing, 2009 ABQB 345 at para 66, 6 Alta LR (5th) 375. Mr. Lucyk wasemployed by BLS as a loader operator. He was not the grounds worker and he was not tasked nor asked to assist Mr. Johnston inclearing the chute. [101] BLS references evidence from its expert witness report by Mr.

Johnstone, who indicated that there was cocaine and cocaethyleneconcentration in Mr. Lucyk’s blood at the time of his death that was higher than all of the per se limits listed in his report. The Courtnoted that these listed limits were for driving offences where any amount of illegal drugs was prohibited. BLS submitted that as a resultof Mr. Lucyk’s drug and alcohol use and mismanagement of his diabetes, his fine motor skills, decision-making, risk assessment andaccident avoidance capacities were materially impaired prior to the incident. That is, Mr.

Lucyk’s poor health management and off dutyconduct resulted in a latent workplace hazard that was entirely his own creation and beyond the control of his employer. [102] In relation to foreseeability, BLS submitted that there were a number of factors leading to the incident that were unforeseeableand beyond the control of BLS. First, it was unforeseen by BLS that Mr. Johnston would blatantly disregard the “Crusher: Lock-OutProcedure”. Second, Mr. Lucyk was not asked to assist in unclogging the chute. Third, BLS alleges that Mr.

Lucyk was under theinfluence of drugs and was hung over, contrary to BLS’s Drug and Alcohol Policy. As well, BLS alleged that Mr. Lucyk mismanaged

his diabetes. These factors establish that the incident was not a foreseeable event. BLS submitted that it has established that the combined effect of Mr. Johnston’s and Mr. Lucyk’s conduct was not reasonably foreseeable and thus BLS cannot be found guilty for failing to prevent this event. Furthermore, BLS submitted that it took all reasonable care to avoid this incident and the defence of due diligence applies and it should be acquitted of all charges. [ 103 ] The Court accepts Dr. Nister’s evidence that Mr. Lucyk’s glucose levels were normal for a diabetic.

The Court also accepts her testimony that the alcohol found in his urine would not affect his brain at the time of the incident because the alcohol was not in his blood. Further, the Court was not convinced that the amount of cocaine found in Mr. Lucyk’s body impaired him. Mr. Johnstone and Dr. Richardson did not clarify this point. However, the Court accepts the recommendation by Dr. Nister to hear from those who actually were with Mr. Lucyk the morning of November 22, 2017 to testify on whether he was impaired that morning. The Court accepts the testimony of Mr. Johnston and Mr.

Holmgren who respectively indicated they did not observe Mr. Lucyk to be hung over or that anything was unusual about his health and nor did they observe Mr. Lucyk to be impaired on the morning of November 22, 2017. [ 104 ] The Court finds that the Crown has established the actus reus beyond a reasonable doubt that BLS failed to provide an effective safeguard where a worker may contact a dangerous moving part of the tail pulley. This failure resulted in the death of Mr. Lucyk. The Court observed how this risk was posed to any worker who was near this uncovered moving tail pulley who may be cleaning the chute.

BLS failed, on a balance of probabilities, to show that it exercised due diligence in light of three main factors. First, other tail pulleys on site had safeguards. Second, the tail pulley at issue was manufactured with anchoring points to bolt a safeguard in place. Third, BLS was able to install a cover on the tail pulley at issue without new or complex resources to do so. As a result, the Court finds BLS guilty of count 3. CONCLUSION I.

Has the Crown proven the actus reus of the three charges against BLS beyond a reasonable doubt? [ 105 ] On count 1, the Court finds that there is no dispute that on November 22, 2017 near Ceylon, Saskatchewan, BLS employed Mr. Troy Lucyk and that he was killed by becoming entangled in the tail pulley of a conveyor system. The Court finds that although BLS provided information on safety on the crusher site, it did not provide information, instruction, training or supervision on the clearing of the chute that led to Mr. Lucyk becoming entangled in the tail pulley.

The Court finds that the Crown has proven the actus reus of count 1. [ 106 ] On count 2, the Court finds that the tower operator at his post, as the supervisor supervising the site, had a stopping device that was in direct view and readily available as per the requirement of the legislation. As a result, the Court finds that the Crown has failed established the actus reus of count 2. [ 107 ] On count 3, The Court finds that the Crown has established the actus reus beyond a reasonable doubt that BLS failed to provide an effective safeguard where a worker may contact a dangerous moving part of the tail pulley.

This failure resulted in the death of Mr. Lucyk. II. If the answer to question one is yes, has BLS established, on a balance of probabilities, that they took all reasonable steps to avoid the commission of these offences? [ 108 ] On count 1, the Court finds that BLS failed in its due diligence to provide adequate information, instruction, training and supervision on the procedure for the clearing of the chute necessary to protect the health and safety of all the workers responsible for that task on the site. Therefore, the Court finds that BLS failed to establish a defence of due diligence in response to count 1.

The result was the death of Mr. Lucyk. [ 109 ] On count 3, the Court finds BLS failed, on a balance of probabilities, to show that it exercised due diligence in light of three main factors. First, other tail pulleys on site had safeguards. Second, the tail pulley at issue was manufactured with anchoring points to bolt a safeguard in place. Third, BLS was able to install a cover on the tail pulley at issue without new or complex resources to do so. As a result, the Court finds BLS guilty of count 3.

________________ M.R. BRASS, J