Her Majesty the Queen - v. -, 2022 SKPC 4

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 4 Date: January 31, 2022 Information: 991137095 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brandt Industries Canada Ltd. Appearing: Sandeep S. Bains For the Crown T. John Agioritis For the Accused DECISION L. WIEGERS , ACJ Introduction [ 1 ] On February 6, 2019, Emma Kerr was seriously injured while operating an overhead crane at a Regina manufacturing facility owned and operated by her employer, Brandt Industries Canada Ltd. (Brandt).

Following an Occupational Health and Safety investigation, Brandt was charged with two offences under The Saskatchewan Employment Act , SS 2013, c S-15.1 [ Act ]. In

summary form, the Crown alleges Brandt failed to ensure Ms. Kerr was a competent crane operator and failed to provide her with approved industrial protective headwear in circumstances that required it. Brandt denies both allegations.

The Incident [ 2 ] In June 2018, Ms. Kerr joined Brandt as an assembler. Ms. Kerr had received her certificate in applied industrial mechanics from Saskatchewan Polytechnic earlier that month. [ 3 ] A common task for Brandt’s assemblers is to move heavy objects with overhead cranes. These objects are sometimes called the crane’s “load.” The overhead crane used in this case has many essential components, but for the purposes of this decision it is satisfactory to mention only a few. The overhead crane is attached to girders that run along the ceiling of the manufacturing facility.

The crane’s operator usually controls the crane while standing at ground level. The operator can do this by using a hand-held device called a pendant. The pendant is attached to the overhead crane by a long chain and electrical wire. The pendant has buttons that enable the operator to lower and raise the crane’s hoist or to move the hoist horizontally in a forward or backward motion. [ 4 ] A load cannot be lifted unless it is attached to a hook that is part of the crane’s hoist. This is accomplished by rigging the load to the hook.

In this case, the load was a long, rounded steel beam and the rigging consisted of two chains that were wrapped around two points at the centre area of the beam. Once the rigging was tightened the chains formed an inverted “V” shape between the hook and the load. [1] [ 5 ] If a load is properly rigged and aligned with the hoist, then moving the load should not involve more than slight unintentional movement. For example, where, as here, the load is a long beam, then the crane operator who lifts the load can prevent additional side to side movement by ensuring the rigging is centred on the load.

If the load is raised off the ground and the crane operator decides to move the beam forward or backward, then non-essential movement may be avoided by keeping the hook directly above the load. The minimization of unnecessary movement is critically important; given the weight of most loads any unexpected movement may place workers in danger. [ 6 ] At the end of January 2019, assemblers at Brandt’s manufacturing facility began work on a structural steel project. One aspect of the job required assemblers to load flat-deck trailers with steel beams that would be transported to a construction site.

Assemblers loaded the flat-deck trailers one at a time. When being loaded, the flat-deck trailer was parked below the overhead crane in the northwest area of the manufacturing facility. In that position, the length of the flat-deck trailer ran in a west-east direction with the driver’s end facing overhead doors on the west side of the facility. The width of the flat-deck trailer was positioned north-south with the north end being close to an exterior wall.

The beams that required lifting were situated on the floor between the exterior wall and the north flank of the flat-deck trailer. [ 7 ] One at a time, beams were rigged to the hook, lifted to a height above the flat-deck trailer, then moved a short distance from north to south so they could be lowered onto the flat-deck trailer. Most of the steel beams were rectangular in shape, but some were rounded. The assemblers loaded the rectangular beams first because they were easier to stack than the rounded beams.

As each layer of beams was added, the assemblers secured them by encasing the ends of the beams in wood framing called dunnage. The photographic evidence suggests that a full flat-deck trailer load consisted of four layers of rectangular beams topped by a single layer of rounded beams. [2] [ 8 ] Ms. Kerr was one of the assemblers who worked on this project. According to Brandt’s records, Ms. Kerr was loading beams for a half day on February 2 and all day on February 4 and 5. It is not clear whether she operated the crane during those shifts. It is clear that Ms.

Kerr was the crane operator on the morning of February 6 when the incident occurred. She was working with Cung Cung, a fellow assembler, and Marc Berube who had been loaned that morning from another department to assist them. Mr. Cung and Ms. Kerr had often worked together on jobs involving crane operation. [ 9 ] By the time the incident occurred, there were four layers of rectangular beams on top of the flat-deck trailer. Ms.

Kerr lifted the first rounded beam and set it down securely on top of the rectangular beam that was second from the north edge of the flat-deck trailer. [3] This was not meant to be the rounded beam’s final placement; it would require a modest re-positioning. The assemblers decided to make that adjustment after their morning coffee-break. As a result, the rigging chains were relaxed, and the workers took their break knowing the rigging would have to be adjusted again before the rounded beam was placed precisely.

[ 10 ] After their break, the three assemblers used a step ladder situated at the southeast corner of the flat-deck trailer to climb onto the top layer of rectangular beams and walk toward the rounded beam. These events were captured on a videorecording. [4] The assemblers looked at the rounded column and then Ms. Kerr and Mr. Berube concerned themselves with the rigging. Ms. Kerr walked to the west edge of the flat-deck trailer and reached for the pendant that was hanging there. She then watched Mr. Berube while he continued to work on the rigging. Mr.

Cung was on the east side of the rounded beam recording serial numbers for Brandt’s shipping records, however, he spent a short period of time observing his co-workers as they rigged the rounded beam and then indicated with his foot where the beam should be placed. Ms. Kerr and Mr. Berube stepped over the rounded beam to stand on a rectangular beam on the north side of the flat-deck trailer. [ 11 ] Clearly, Ms. Kerr intended to move the rounded beam southward into the spot Mr. Cung had identified with his foot. Yet, when she activated the crane the rounded beam shifted north toward Ms. Kerr and Mr. Berube. Ms.

Kerr fell off the flat-deck trailer to the floor. It is not clear how far the beam shifted. It is also not clear if the beam struck Ms. Kerr or if it was her reaction to its shift that caused her to lose balance. [ 12 ] No one observed the entirety of Ms. Kerr’s fall, but her injuries suggest she landed on her left shoulder and the left side of her head struck the floor. Her injuries were very serious. She was diagnosed with a traumatic brain injury, two temporal bone fractures, and a broken shoulder. [5] Ms. Kerr spent two weeks in hospital. She still suffers from her injuries.

She continues to require physiotherapy to address pain and loss of strength and mobility in her shoulder. Currently, Ms. Kerr is engaged in studies directed toward a different career path. In past studies she has proven herself to be a strong student, but she testified the incident has weakened her memory and mental stamina. [ 13 ] On the date of the incident Ms. Kerr was 22 years old and had been an assembler with Brandt for about seven months. The Charges Count 1: Was Ms.

Kerr a competent overhead crane operator? [ 14 ] Specifically, Brandt is charged that at Regina on February 6, 2019 it did: Being an employer, fail to ensure that for any crane with a load rating greater than or equal to five tonnes, the designated operator is a competent operator, contrary to section 204(5) (

a) of the Occupational Health and Safety Regulations, 1996 , resulting in the serious injury of a worker, namely Emma Kerr, and did thereby commit an offence contrary to

section 3 - 78 (

g) and 3 - 79 of The Saskatchewan Employment Act . [ 15 ] This is a strict liability offence. The Crown bears the burden of proving the essential elements of the actus reus to the standard of proof of beyond a reasonable doubt. If the Crown successfully discharges its burden, then Brandt can avoid being found guilty only if it establishes the defence of due diligence on a balance or probabilities. [ 16 ] The parties agree the Crown has met its burden regarding all but one element. The issue to be determined is whether the Crown has proved beyond a reasonable doubt Brandt failed to ensure Ms. Kerr was a “competent operator.” Subsection 204(1) (

a) of The Occupational Health and Safety Regulations, 1996 , RRS c O-1.1 Reg 1 [ Regulations ] defines the term. A crane operator may be competent by virtue of training or supervision: (a) “competent operator” means a worker who has successfully completed a training program that includes all of the elements set out in Table 16 of the Appendix for the crane that the worker will be required or permitted to operate or is completing the practical training required by

Part II of Table 16 under the direct supervision of a competent operator or a qualified operator. (emphasis added) Did Ms. Kerr successfully complete a suitable training program?

[ 17 ] Table 16 of the Appendix to the Regulations establishes the minimum training requirements for a competent overhead crane operator. The Table is divided into two parts.

Part I establishes the training program’s required content.

Part II lends structure to the training program by setting its length at 40 hours and mandating the hours be apportioned between classroom and practical components. [ 18 ] The Crown alleges Brandt failed to ensure Ms. Kerr successfully completed a suitable training program. Specifically, the Crown contends Brandt’s training regime fell below Table 16’s content and duration requirements. In oral submissions, the Crown relied more heavily on the duration requirement. I will turn to it first. The 40 hour training program requirement [ 19 ] Assemblers at Brandt use overhead cranes regularly. Ms.

Kerr began her overhead crane training program only three days after she started working for Brandt. The defendant provided Ms. Kerr with theory training in a classroom followed by practical training at Brandt’s manufacturing facility. [ 20 ] Regarding the classroom component of Ms.

Kerr’s training, Brandt’s instructor delivered a day-long session based on a training manual developed by the Safety Association of Saskatchewan Manufacturers (SASM). [6] SASM is a safety organization dedicated to preventing injuries in the manufacturing sector and is funded through workers’ compensation premiums paid to the Workers’ Compensation Board by organizations operating in the manufacturing industry. [7] [ 21 ] SASM claims the classroom component of its training meets the content requirements of Table 16. Ms.

Kerr spent about six and one-half hours in the classroom receiving instruction and successfully completed a written examination. The following day, she successfully completed a practical examination in which she executed a lift with an overhead crane of the same type and model involved in the incident. That lift consumed about 30 minutes of her time and therefore after it was over, she had completed about seven hours of program training. According to

Part II of Table 16, Brandt was required to provide Ms. Kerr with at least another 33 hours of practical training. According to s. 204(1) (

a) those training hours had to be performed on the type of overhead crane she used during the incident. [ 22 ] Brandt argues it met and exceeded these requirements. In support, it relies on a combination of Ms. Kerr’s work records and the testimony of witnesses received at trial. [ 23 ] Brandt filed payroll records that reflect Ms. Kerr’s daily work activities. [8] Her workdays were eight hours long. Following her successful completion of classroom work and the single practical lift demonstration described above, she commenced a training period. From June 29, 2018 to July 31, 2018 she worked 22 days.

For each day Ms. Kerr’s work activity entries are identical and provide the reader with only general information. Each day she was in “training” and engaged in tasks related to “production assembly.” The records reveal nothing about what she was doing specifically. [ 24 ] The record entries for this period do not expressly mention overhead crane operation. Based on testimony, this is because Ms. Kerr was learning several tasks during her first month and overhead crane operation was only one of them. It seems Brandt decided the best way to expose Ms.

Kerr to the various tasks she would have to learn was to provide her with close supervision while she worked on regular jobs with other assemblers. [9] Thus, there was no training period of 33 consecutive hours devoted exclusively to overhead crane operation. Instead, Mr. Kerr used the overhead crane as the job at hand required. How much time she spent on overhead crane training cannot be precisely determined as Brandt did not require its employees to specifically record their overhead crane hours.

Jason Rudolph, the assemblers’ supervisor, opined that given the type of work assemblers perform, it would be impractical for workers to stop work and record matters each time their tasks changed. [10] [ 25 ] Mr. Rudolph has been employed by Brandt for about 24 years and has been a supervisor for 15 years. He is a competent overhead crane operator with about 4,000 hours of experience in crane operation. [11] He estimated that during this period, Ms. Kerr would have been involved in overhead crane operation between 1.5 and two hours each workday.

At another juncture of his testimony he estimated one to two hours a day but later described it as at least one “good” hour. [12] Ms. Kerr agreed with the suggestion she received 1.5 to two hours of overhead crane training each day. [13] [ 26 ] Mr. Rudolph explained that while Ms. Kerr received training on the overhead crane, she worked alongside a competent

operator who supervised her directly. Mr. Rudolph testified that Ms. Kerr was the least experienced assembler and all the otherassemblers were already competent overhead crane operators. During the training period, Ms. Kerr worked with different supervisors and was involved in a variety of lifting tasks. Supervisors provided advice and intervention as required.[14] [27] In Ontario (Ministry of Labour) v Hamilton (City) (2002), (ON CA), 58 OR (3d) 37 (Ont CA), theOntario Court of Appeal neatly summarized the correct approach to

interpretation of public welfare legislation, at paragraph 16: The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed topromote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of thelegislative scheme. Narrow or technical

interpretations that would interfere with or frustrate the attainment of the legislature’s publicwelfare objectives are to be avoided. [28] Like the Ontario legislation, the Act is designed to regulate the workplace for the purpose of promoting worker safety. Thispurpose should guide the Act’s

interpretation subject to the exception that overly broad

interpretations must be avoided where theiradoption would produce absurd or unreasonable results: R v Blue Mountain Resorts Limited v Ontario (Labour), 2013 ONCA 75 at paras25-27, 114 OR (3d) 321. [29] The evidence summarized above satisfies me that the 22 day training period during July 2018, did constitute a “trainingprogram” under s. 204(1)(

a) of the Regulations. Mr.

Rudolph’s description of the overhead crane training that Brandt provided to Ms.Kerr convinces me she was receiving training and supervision as contemplated by the Regulations: 2(ddd) “supervisor” means a person who is authorized by an employer to oversee or direct the work of workers; 2(eee) “train” means to give information and explanation to a worker with respect to a particular subject-matter and require a practicaldemonstration that the worker has acquired knowledge or skill related to the subject-matter. [30] Regarding the 40 hour time-limit, Table 16 does not impose specific record-keeping duties on the employer.

Yet, the 40 hourrequirement necessarily implies an added requirement that Brandt have a reliable method of determining when the time requirement issatisfied. As mentioned, Brandt did not maintain specific records of the amount of time Ms. Kerr spent in overhead crane training on thetype of crane involved in this incident. This is concerning because the SASM training manual on which Brandt relies states, “training must be documented in the employee’s training file.”[15] [31] I find Mr. Rudolph’s estimate to be reliable. He provided an estimated range of one to two hours of overhead crane trainingper workday.

Given Ms. Kerr had already accrued seven hours of training before the 22 day training period commenced, her practicaltraining component had to be at least 33 hours in duration. The range provided by Mr. Rudolph would have placed her at 22 to 44 hoursby August 1, 2018. Therefore, it is possible Ms. Kerr did not reach 33 hours before that date and that possibility is strengthened whenone considers that s. 204(1)(

a) requires training “for the crane that worker will be required or permitted to operate.” There is more thanone model of overhead crane in the manufacturing facility and some of Ms. Kerr’s practical training would have involved a differentmodel of overhead crane, though the majority of the assemblers’ work was completed on the crane that was used during the incident. [32] The question I must answer is whether Ms. Kerr was a competent operator on the date of the offence, not on the date her workrecords indicate she ended training.

Brandt submits that her overhead crane training did not end on August 1, 2018 but carried on afterthat date. Brandt states that after the end of July 2018, the entries in Ms. Kerr’s work records changed from “training” to specific jobtitles because the company started billing Ms. Kerr’s time to clients. As for her relationship with overhead cranes, Mr. Rudolph testifiedthat Ms. Kerr’s arrangements were unchanged: she continued to work alongside a competent operator who would advise her and intervene as necessary.[16] Ms. Kerr worked on a variety of jobs conducting different types of lifts. Mr.

Rudolph estimated that during this period she would have worked with overhead cranes at least 1.5 to two hours a day[17] and that by the time of the incident she had between 200 and 300 hours of experience with overhead cranes.[18] His estimate seems reasonable given Ms. Kerr worked 108 daysbetween the end of July, 2018 and the date of the incident. [33] Ms.

Kerr confirms that her work with overhead cranes after August 1 was basically the same as before, though the work-codes she inputted changed.[19] She agreed that she did not operate the crane alone and that when she was operating the crane she was with anexperienced operator. She understood that she was to use the overhead crane regularly until she operated it safely. Ms. Kerr said she wasconfident that if something had been wrong with her work, then a competent operator would have intervened.

If she had doubts she was equally confident her questions would be answered by one of these co-workers.[20] She agreed that in general she worked onprogressively more difficult tasks and that if she felt a task was beyond her comfort zone she could ask for direction. She added that it

was not a priority for Brandt to complete tasks quickly. [21] During this time, Mr. Rudolph opined that Ms. Kerr became a “good crane operator” and “there was no two ways about it.” [22] [ 34 ] The Crown contends there are problems with viewing the training period in this manner. First, there is no specific end-date to the training period, so it is impossible for the employer to determine with precision if its employee is a competent operator and if so, when that becomes the case. Second, it seems there was no difference between Ms. Kerr’s training program of July 2018 and her post- training period work.

This, the Crown asserts, demonstrates there was no training program at all . Third, the Crown argues that if Brandt’s training program was inadequate, then the operators who supervised Ms. Kerr during her training period were not competent operators themselves and therefore could not provide her with the type of supervision demanded by s. 204(1) (a). [ 35 ] As mentioned, the only limitations that Table 16,

Part II places on the training program is that it be 40 hours in length and consist of a classroom and practical component. It does not matter how the time is apportioned between the two components; a classroom component of 39 hours followed by a practical component of one hour could suffice. Nor does it matter if the hours are completed consecutively or within a certain period of days or months. Further, it does not matter if the performance of the hours occurs in relation to practical exercises or actual work performed for the employer’s profit.

In my view, this answers the Crown’s concern that a training program cannot simply be another name for work. A training program can include regular work if the crane operation it involves satisfies the dictates of s. 204(1) (

a) and Table 16. The evidence previously referred to surrounding Ms. Kerr’s overhead crane training during July 2018 and then between August 2018 and February 2019 satisfies me she received the type of overhead crane supervision and training contemplated by the Regulations . [ 36 ] I am also satisfied that Ms. Kerr spent more than 40 hours in such training before the date of the incident. I cannot pinpoint the date on which the 40 th hour of supervised training occurred, but based on the estimates of Mr. Rudolph, which I accept, I conclude it occurred long before the incident date. To be clear, I have found Ms.

Kerr completed seven hours of training before the end of June 2018 and at least another 22 hours during July 2018. Based on my findings that Ms. Kerr continued in training after the end of July 2018, she would have reached 40 hours by the end of August 2018, and likely sooner. This also answers the Crown’s concern that none of the more senior employees who worked with and supervised Ms. Kerr were competent operators. These employees received substantially the same training Ms. Kerr did and had been working as assemblers before Ms. Kerr was hired. For instance, Mr.

Cung, who it would appear spent the most time working alongside Ms. Kerr, had worked in that role for years. [ 37 ] This is not an endorsement of Brandt’s record keeping practices. Notwithstanding Table 16 does not require precise record keeping, Brandt chose to rely on the SASM training that calls for thorough documentation and Brandt did not meet that standard. There is good reason why such record maintenance is desirable. For instance, employers and employees may find it beneficial to know precisely when the training period is complete to avoid workplace confusion.

For example, how can an employer or employee know when it is safe for a crane operator to work without supervision without having a careful accounting of the employee’s training? Although, precise records are preferable, in the present circumstances they are not essential because by the date of the incident Ms. Kerr had completed a training program of at least 40 hours under the direct supervision of a competent operator. The Crown bears the burden of proving beyond a reasonable doubt that Ms. Kerr did not receive such training and in my view, it has failed to do so. The Log Books requirement [ 38 ]

Part I of Table 16 sets out the required course content for the training program. Brandt contends the SASM manual that is the basis for the training program’s classroom session covers all of

Part I’s required course content. The Crown argues there is one element that is not addressed anywhere in Brandt’s training program: Log Books. [ 39 ] The “Log Books” requirement imposed by Table 16 is the last of 11 requirements and is set out briefly as follows: K. Log Books: Record inspections, maintenance, calibrations and work activities Hours of service Signed by employer and person performing inspection, maintenance and calibration

[ 40 ]

Section K suggests log books are required to ensure that information related to important subjects is recorded. The important subjects are inspection, maintenance, calibration, work activities and service hours for cranes. These subjects are addressed elsewhere in the training program and Ms. Kerr received instruction on them. [23] What is less clear, is whether Ms. Kerr received instruction as to completing log book entries regarding these subjects.

The SASM manual states that regarding inspections, “regulations require log books to be kept for any hoist rated at more than 5 tonnes.” [24] As well, it is clear that Brandt kept written records related to daily crane inspections including one for the date of the incident. [25] Ms. Kerr’s classroom training involved instruction on how to perform a visual inspection. However, the two visual inspection records that were admitted into evidence were not authored by Ms. Kerr. [ 41 ]

Part I of Table 16 does not set a sufficiency standard for content. Ms. Kerr was trained in completing visual inspections and gathering the important information that required recording. She was also informed that log books must be kept of this type of information. Considering these factors cumulatively, I am not satisfied beyond a reasonable doubt that Brandt failed to ensure Ms. Kerr received suitable training respecting log book records. Brandt’s alternative argument [ 42 ] If I had found that Brandt failed to ensure Ms.

Kerr successfully completed a training program consistent with the requirements of Table 16 and s. 204(1)(a), then Brandt advances an alternative argument that on the date of the incident Ms. Kerr was still in training and under the direct supervision of a competent operator, Mr. Cung. I need not address the alternative argument given my decision respecting Brandt’s primary argument.

Count 2: Was Brandt required to provide approved industrial protective headwear and require the assemblers to wear it? [ 43 ] Count 2 alleges that Brandt at Regina on February 6, 2019: Being an employer, did not provide approved industrial protective headwear and require a worker to use it where there is a risk of injury to the head of a worker contrary to sections 91(1) of the Occupational Health and Safety Regulations , 1996 , resulting in the serious injury of a worker, namely Emma Kerr and did thereby commit an offence contrary to sections 3 - 78 (

g) and 3 - 79 of the Saskatchewan Employment Act . [ 44 ] Subsection 91(1) of the Regulations states: Where there is a risk of injury to the head of a worker, an employer or contractor shall provide approved industrial protective headwear and require a worker to use it. [ 45 ] Subsection 3-79 of the Act establishes penalties for violations of the Regulations .

Notably, s. 3-79(7) increases the penalty maximum for an offence that causes serious injury to a worker. [ 46 ] Like Count 1, this charge is a strict liability offence meaning the Crown must prove all essential elements of the actus reus to the standard of proof of beyond a reasonable doubt before Brandt is required to respond. In my view, given the wording of the charge and the text of s. 3-79(7) the Crown must prove the failure to ensure Ms. Kerr wore protective headwear caused her head injuries.

Count 2 alleges the omission resulted in serious injuries while s. 3-79(7) increases the available penalty maximum where the offence “causes” serious injury. That said, if the Crown fails to prove causation it is also my view that Brandt could still be found guilty of the offence under s. 91(1) if the Crown proves all other essential elements of that offence.

The difference would be that if Brandt was convicted on that basis it would be subject to the lower maximum penalty provided by s. 3-79(4). [ 47 ] The essential elements of the actus reus that are in dispute are: (1) whether there was a risk of injury to the head of a worker; and, (2) whether not requiring Ms. Kerr to wear approved industrial protective headwear was causally connected to her head injuries. Brandt submits the Crown must also prove that headwear exists that is approved , but the Crown contends that is not an essential element of the offence. Risk of head injury

[ 48 ] The Crown asserts the assemblers’ post-coffee break actions respecting the rounded steel beam presented a risk of head injury to all three assemblers. The actions that concern the Crown include the workers’ ascending the step ladder alongside the flat-deck trailer, their climbing on top of the load, stepping on and between the rectangular beams and Ms. Kerr operating the crane from above ground level.

The Crown submits each action posed a significant risk that a worker might stumble or fall and incur head injury. [26] [ 49 ] Brandt claims the risk an assembler would fall and sustain a head injury was remote and it is dangerous to equate an imaginable risk with a significant one. Brandt submits the risk contemplated by s. 91(1) must be a “realistic risk.” Brandt notes the evidence demonstrates the crane’s load was never lifted above any of the worker’s heads and Brandt’s policy prohibits that from occurring.

Moreover, Brandt submits protective headwear is designed to protect workers from impacts to the top and sides of their heads and not from falls . Brandt cites witness evidence opining a hard hat would not have protected Ms. Kerr because it likely would have fallen off during her fall or on impact with the floor. Finally, Brandt points to witness testimony that no worker had fallen off a trailer previously as further evidence Ms. Kerr’s fall was highly unlikely. [ 50 ] I agree that to ground liability the risk contemplated by s. 91(1) of the Regulations must be realistic.

Employers cannot be expected to account for possibilities that are very unlikely. At the same time, the risk posed does not have to be likely; a risk is realistic if it is significant. I am not satisfied that certain actions taken by the workers involved a realistic risk of injury to a worker’s head. These actions include the workers’ stepping up onto the flat deck, climbing on top of the load and walking along and between the rectangular columns. It is conceivable that a worker might stumble during such actions but, in my view, it is very unlikely that would happen to a worker taking reasonable care.

As well, if a worker did stumble, the chance of incurring a head injury is even lower. In viewing the videorecording of the incident, it appeared to me the assemblers completed these actions with no difficulty and were careful while doing so. [ 51 ] There is another worker action, however, that raises concern. I return to the part of the evidence where Ms. Kerr and Mr. Berube stepped over the rounded steel beam to stand at the north side of the beam. They made this move because Ms. Kerr was about to use the crane to move the rounded beam southward.

The evidence, both direct and indirect, provides me with a basis to infer certain facts that are important in determining whether there was a risk of head injury to a worker. In drawing these inferences I bear in mind that while risk of head injury is an essential element of the offence and therefore is subject to the standard of proof of beyond a reasonable doubt, the subsidiary pieces of evidence I rely on to decide that issue are themselves subject to the standard of proof on a balance of probabilities: R v Farnham , 2016 SKCA 111 at para 39 , [2016] 12 WWR 635. I infer the following facts: A.

The moment before she fell, Ms. Kerr and Mr. Berube stood on a narrow flat surface of a rectangular beam. The surface was not more than eight inches wide. [ 52 ] The videorecording indicates that after Ms. Kerr and Mr.

Berube stepped over the rounded beam, they stood near one another to the west of the rigging. [27] The videorecording does not afford a clear view of the position of their feet, but photographic evidence demonstrates the only surface they could have been standing on was a rectangular beam. [28] The narrowest side of the rectangular beam is about four inches long. [29] The part the worker’s stood on would not be more than double that measure, or eight inches. [30] B. The moment before Ms. Kerr fell, the soles of her work boots were at least eight feet above the floor [ 53 ] It is clear Mr. Berube and Ms.

Kerr stood on one of two rectangular beams. One beam was higher than the other. [31] Regarding the higher beam, the distance from its top to the floor was measured to be 103.5 inches or eight feet and seven and one-half inches. [32] The other rectangular beam they may have stood on was the next highest rectangular beam on the north side of the trailer.

As mentioned, the narrowest side of the rectangular beam is about four inches and the photographic evidence suggests there was about half as much distance between the beams. [33] As a result, I conclude about six inches separated the top of the higher beam from the top of the lower beam. Therefore, if the workers stood on the top of the lower beam, then they were at least eight feet above the floor. C. As Ms.

Kerr began the lift, the rounded beam was close to her, it was heavy, and some unintentional movement could be expected. [ 54 ] As the workers stood to the north of the rounded beam it rested at about their knee-level. The videorecording indicates the rounded beam was close to the worker’s position. [34] According to Mr. Rudolph the rounded beam weighed 1767 pounds. [35] Mr. Berube testified it would not be unusual for a load to shift toward the operator but the shift would be in “inches” not “feet”.

As mentioned, it is impossible to tell from the videorecording how far the rounded beam shifted north but I gather the shift was greater than Mr. Berube and others expected. [36]

[ 55 ] Considering “A”, “B” and “C” collectively I am satisfied beyond a reasonable doubt there was a realistic risk that Ms. Kerr or Mr. Berube would fall in these circumstances. The beam was close to them, a northward shift of some degree could be expected, and they were standing on a narrow surface. Given the shifting beam quickly approached their knees it is not surprising Ms.

Kerr lost her balance even if the beam did not contact her. [ 56 ] Brandt submits that if there was a realistic risk a worker would fall, then protective headwear would be of little value in protecting the worker. [ 57 ] Witnesses, opined that if Ms. Kerr had worn protective headwear it may have fallen off her head before she struck the floor or as she struck the floor. I infer these witnesses have significant experience using hard hats, but none of the witnesses specified their experience with falls and hard hats and none of them had seen a worker fall off a flat-bed trailer load before.

Therefore, I do not place significant weight on those opinions. In addition, it is noteworthy that s. 91(4)(

b) requires the employer to ensure industrial protective headwear worn by workers includes a retention system that will ensure it remains in place. That is, if Brandt was required to compel Ms. Kerr to wear a hard hat it was also Brandt’s responsibility to ensure it would not dislodge.

It is noteworthy, that Occupational Health and Safety Officer Tim Hollis testified that even though the hard hat he would recommend did not have a chin strap it did have a retention system that could be fastened to adjust to the worker’s head. [ 58 ] Brandt also submits that protective headwear like hard hats is not designed to protect workers from falls. Rather, it protects the worker from overhead and lateral impacts caused by objects that strike the worker’s head. I accept that the primary use of hard hats is not to protect workers against falls.

That said, where there is a risk of head injury from a fall and there is no other equipment protecting the worker from falling, then protective headwear should be worn to mitigate the risk or extent of head injury. Leaving aside for the moment the question of whether a hard hat would have mitigated Ms. Kerr’s specific injuries, it is not difficult to foresee scenarios in which a worker who falls from Ms. Kerr’s position could strike a part of her head that would be protected by a hard hat. For instance, a worker who caught her foot between beams as she fell might fall almost head-first to the floor.

Similarly, the heavy impact of a shifting beam on the worker’s lower body might propel the falling worker away from the flat-deck trailer and toward other objects on the floor such as the next rounded beam that will be loaded. [37] [ 59 ] In all, I am not satisfied that in the circumstances it was likely Ms. Kerr would fall and suffer a head injury that could have been mitigated through the use of approved industrial protective headwear, but I am satisfied beyond a reasonable doubt there was a realistic risk that would occur.

Is the Crown required to prove what industrial protective headwear is approved for the purposes of s. 91(1) and if that is the case has it done so? [ 60 ] The defendant’s argument arises from the definition of “approved” in s. 2(1)(

c) of the Regulations : (c ) “approved” means: (

i) approved by an agency acceptable to the director for use under the conditions prescribed by the agency; or (ii) approved conditionally or otherwise by a certificate of the director. [ 61 ] There is no certificate issued by the director under s. 2(1)(c)(ii). Brandt submits the inclusion of the term “approved” in s. 91(1) places a burden on the Crown to prove beyond a reasonable doubt the director has approved an agency that has prescribed conditions surrounding the use of the protective headwear. [ 62 ] The Crown resists this claim.

It submits that if Brandt had been charged with the offence under s. 91(1) on the basis protective headwear it had provided to a worker was not approved, then the Crown would bear such a burden. Yet, in a case such as this where the employer made no effort to provide any protective headwear the Crown argues it bears no such burden. [ 63 ] I agree with the Crown’s submission. I am reminded the purpose of the Act and the Regulations is to promote workplace safety.

Establishing there is approved industrial protective headwear available is important where the employer has attempted to obtain and provide protective equipment that meets industry standards. That is not the case here. The evidence suggests Brandt is a sophisticated, well-resourced employer. It had protective headwear at its disposal but decided it was not necessary in these circumstances. [38] I have already decided there was a risk of injury to Ms. Kerr’s head.

In my view, it would run counter to the legislation’s purpose to effectively negate that finding by demanding proof of approved protective headwear when Brandt had no

intention of compelling Ms. Kerr to use it. [64] In the event I am wrong in my conclusion I will go further to consider whether the Crown has, in any event, proved there isapproved industrial protective headwear available for this purpose. [65] Officer Hollis was on scene shortly after Ms. Kerr sustained her injuries. During his testimony he was shown a picture of afellow investigator wearing what is commonly referred to as a “hard hat”. He said the hard hat was “CSA” or “ANSI” approved forindustrial use.

He testified CSA was an acronym for “Canadian Standards Approved” and ANSI was an acronym for its Americancounterpart. His understanding was that the Occupational Health and Safety director has approved the hard hats for industrial use. [66] Bearing in mind that Ms. Kerr was not provided with protective headwear of any kind nor compelled to wear any, I considerOfficer Hollis’s evidence sufficient to prove there is a hard hat approved for industrial purposes of this kind including the hard hat wornby Officer Hollis’ colleague. In fact, was Ms.

Kerr’s head injury sustained because she was not wearing protective headwear? [67] Ms. Kerr received a serious shoulder injury that could not be mitigated by wearing a hard hat. To be clear, The purpose ofprotective headwear is to protect a person’s head, not other parts of her body. Therefore, the question to be answered is whether Ms.Kerr’s head injuries would have been less severe had she worn protective headwear?

If so, then it can be safely said that the absence ofthe protective headwear made a material contribution to the seriousness of her head injuries and causation is proved. [68] No witness saw the entirety of Ms. Kerr’s fall. In fact, no witness saw how she landed on the floor. We do not have a preciseunderstanding of Ms. Kerr’s body position as she lay on the floor though a photograph of blood stains implies where Ms. Kerr’s head came to rest.[39] In the absence of such evidence, this determination must be guided by Ms. Kerr’s medical records[40] and what could beexpected from a hard hat under these circumstances.

No expert evidence was received that would explain the interrelationship of Ms.Kerr’s head injuries, the nature of her fall and protective headwear. [69] The medical records describe a fracture to Ms. Kerr’s petrous temporal bone linked to a fracture in the squamous temporalbone. These bones are located near a person’s ear. Significantly, Ms. Kerr testified that she bled from her left ear following the incident. [70] Had Ms. Kerr been wearing approved industrial protective headwear it would have been the kind described by Officer Hollisthat is depicted in Exhibit P-1, Tab A at photograph 3.

In that photograph Officer Hollis’ colleague stands upright on a step ladder. Clearly, his ear and the area immediately around it is exposed. In the circumstances, I am not satisfied beyond a reasonable doubt that ifMs. Kerr wore the head protection her head injuries would have been diminished. The Crown has not proved this essential element ofthe offence. Due Diligence [71] Regarding count 2, the Crown has proved beyond a reasonable doubt all the essential elements of the actus reus of s. 91(1).

Brandt submits it should not be found guilty of the offence, however, because it exercised due diligence. [72] The defence of due diligence is available if: (1) the accused reasonably believed in a mistaken set of facts that if true wouldhave rendered the act or omission innocent; or, (2) the accused took all reasonable steps to avoid the event giving rise to the charge. The onus rests with the defence to the standard of proof on a balance of probabilities: R v Sault Ste. Marie, (SCC),[1978] 2 SCR 1299 at paras 59-60. [73] Brandt submits it took all reasonable steps to avoid a risk of injury to the assemblers.

Regarding overhead crane operationBrandt had a strict policy in place that warned workers to not raise loads overhead or to walk under overhead loads. This policy wasobserved by the assemblers on the incident date. Workers were also trained in hazard and risk assessment to continually monitor theirwork surroundings for potential safety hazards. Workers could request protective headwear if they believed that was necessary. Brandtalso argues the significant shift of the rounded beam was not reasonably foreseeable.

[ 74 ] I agree that Brandt took reasonable steps to prevent the assemblers from being struck in the head by the crane’s load. I have found, however, the risk of head injury stemmed from the possibility Ms. Kerr or Mr. Berube would be displaced by the rounded beam’s sudden shift. In my view, this event was reasonably foreseeable, for the reasons I set out in paragraphs 52 through 56 above. [ 75 ] According to Mr. Berube a shift could be expected, but the extent of this shift was unexpected.

Given the assemblers were eight feet off the ground, standing on a narrow surface, and working with a heavy load it would have been reasonable for a supervisor to consider what might happen to a worker if a greater than average shift occurred. Had a supervisor done so, I expect the risk would have been appreciated and safety measures applied. That likely would have led to a consideration of protective headwear but also other safety measures that would reduce the prospect a worker might fall.

In other words, because the incident was reasonably foreseeable it was incumbent on Brandt to take specific steps to mitigate that risk. [ 76 ] I am not satisfied that in this case requiring workers to make ongoing job hazard assessments is sufficient to demonstrate due diligence. There were supervisors on location and this was the third day on which beams were being loaded in this fashion. The supervisors expressed no concern; it is difficult to expect more from the workers. [ 77 ] I am not satisfied on a balance of probabilities that Brandt exercised due diligence respecting count 2.

Conclusion [ 78 ] Regarding count 1, the Crown has not proved beyond a reasonable doubt that Brandt failed to ensure Ms. Kerr was a competent overhead crane operator at the time of the incident. Therefore, I dismiss that charge. [ 79 ] Regarding count 2, I am satisfied beyond a reasonable doubt that Brandt has breached s. 91(1) of the Regulations . I have a reasonable doubt, however, that the breach caused Ms. Kerr’s head injuries. Therefore, I find Brandt guilty of the breach but not responsible for the aggravating factor of Ms. Kerr’s head injury. _______________________ Wiegers, ACJ