Her Majesty the Queen - v. -, 2018 SKPC 61

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 0 61 Date: November 2, 2018 Information: 24453195 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Nalco Champion, an Ecolab Company, also known as Nalco Canada ULC Appearing: Buffy L. Rodgers For the Crown David G. Myrol For the Accused JUDGMENT L. WIEGERS , J Introduction [ 1 ] On May 22, 2014, 38 year-old Michael Bunz was employed by the defendant, Nalco Champion, an Ecolab Company, also known as Nalco ULC [Nalco]. That morning, Mr.

Bunz was working alone inside a building at an oilfield facility when he was exposed to an uncontrolled, pressurized release of fluid and gases. The emitted gases included lethal amounts of Hydrogen Sulphide [H2S] and Mr. Bunz quickly fell unconscious and died. The task Mr. Bunz had been engaged in was one he had performed successfully on thousands of occasions.

[ 2 ] Following an investigation, Nalco was charged under The Saskatchewan Employment Act , SS 2013, c S-15.1 [ Act ] with failing to take all practicable steps to prevent Mr. Bunz from being exposed to the deadly gas. [ 3 ] Nalco denies the allegation. It claims the Crown has failed to discharge its burden of proof. In the alternative, Nalco relies on the defence of reasonable care. Factual Background [ 4 ] The facility at which Mr. Bunz died, was owned and operated by Harvest Energy Corporation [Harvest]. Such facilities are common in oilfields.

A few comments about oil production are necessary in order to understand why Mr. Bunz was at the Harvest facility. [ 5 ] The crude oil that is extracted from oil wells contains a mixture of oil, water, salt, gases, and other substances. This mixture is sometimes called “produced water”. As a whole, the mixture is not marketable, but its oil and gas is marketable. The building where Mr. Bunz was working is a gathering point for produced water piped in from several oil field wells.

As the produced water travels the pipeline it is referred to as “the production stream.” Inside the building an apparatus separates the oil and gas from the other substances. Once separation is accomplished the remaining substances are re-injected into the oil field’s reservoirs while the oil and gas is transported by pipeline to a larger Harvest facility to undergo further refinement. [ 6 ] Importantly, the pipelines that transport the produced water are made of metal and are subject to corrosion.

It was Nalco’s business to seize and analyse samples of produced water from the pipelines and piping systems with a view to recommending blends of chemical additives that would inhibit corrosion. Harvest contracted Nalco to perform this function at its facilities. Nalco has similar business relationships with as many as 50 oilfield companies in Saskatchewan and Manitoba. [ 7 ] Nalco assigns employees to each of its client companies. These employees are known as sales representatives and their primary duty is to take liquid samples for analysis. Mr.

Bunz was Nalco’s sales representative assigned to Harvest. [ 8 ] Liquid samples can be drawn from various points along a piping system. They can be taken outside or inside a building and from points that are capped by bull plugs or pressure gauges. Here, the liquid sampling of concern occurred at a pressure gauge point inside the building at the facility.

The building is a one story metal building that covers an area of perhaps 600 square feet. [1] The pressure gauge is a circular object screwed into a sampling valve that is connected to a header. [2] That noted, after hearing a considerable amount of evidence on the subject, I conclude that the main features of drawing a liquid sample are generally the same regardless of sampling location and that an experienced sampler like Mr.

Bunz would normally complete the task in no more than five minutes. [ 9 ] To successfully draw a sample for analysis, the sampler uses a crescent wrench to loosen the fastener that holds the pressure gauge in place. The sampler slowly removes the pressure gauge making sure there is no noticeable pressure built up behind it. Absent such pressure, the sampler removes the pressure gauge, sets it aside and then inserts a spigot into the sampling valve to remove any stagnant fluids that are present. Fluids are usually present and they are flowed into an open jug.

The removal of the stagnant fluid ensures a representative sample can be obtained. It is not unusual for a litre or more of stagnant fluid to be removed. The spigot is then re-inserted and samples are flowed into small containers and sealed. Minor amounts of fluid sample can be safely drawn because of the presence of a small metal ball in the sampling valve that restrains the produced water behind it and a retaining ring that ensures the ball remains in place.

After the sample is drawn, the sales representative ends the procedure by re- attaching the pressure gauge and tightening its fastener. [ 10 ] A sign stands alongside the road that leads to the facility. It warns of “dangerous H2S

poisonous gas”. [3] Similar signage is mounted to the door of the building at the facility. [4] An alarm device is mounted on the same exterior wall and is linked to an H2S monitor inside the building. The alarm sounds and flashes light when the monitor inside the building detects H2S levels have reached a certain level. [5] As well as activating when the H2S threshold is exceeded, if the safety system is functioning properly it will send a message alert to Harvest.

On the incident date, the system’s detection function was in working order but not its message alert function. [ 11 ] The monitor’s H2S threshold is 10 parts per million [ppm]. The threshold is based on scientific research and the applicable law on chemical exposures reflects that research by establishing two exposure limits that are sometimes referred to as “ contamination limits”: The Occupational Health and Safety Regulations, 1996, c O-1.1 Reg 1 [ Regulations ] at table 21. The contamination limits consist of quantitative and temporal components.

Where the H2S exposure averages 10 ppm for eight hours the contamination limit is breached. The contamination limit is also eclipsed by H2S exposures that average 15 ppm for 15 minutes. [ 12 ] The contamination limits refer to H2S levels in the atmosphere. For example, a person who is exposed to 700 ppm in the atmosphere will immediately lose consciousness and likely die in less than an hour. [6] Unsurprisingly, H2S levels in the produced stream far exceeds H2S levels in the air around the piping systems. The production stream of concern in this decision had an H2S concentration of 25,000 ppm.

This is considered a moderate level. By contrast, another production stream in the same region bears an H2S concentration of 200,000 ppm. [ 13 ] There were no witnesses to the incident. Harvest’s facility operator, Dave Dovell, knew Mr. Bunz was going to be sampling at the building that morning. Around 7:30 a.m. he had an uneventful exchange with Mr. Bunz; he was unsure if it was by telephone or text message. At about 10:15 a.m., Mr. Dovell drove to the facility and saw Mr. Bunz’s truck was parked outside the building. Upon opening his truck door, Mr.

Dovell felt his heart sink as he observed the H2S alarm’s flashing lights and heard a loud hissing noise coming from inside the building. He raced to Mr. Bunz’s truck hoping to find him inside, but he did not. Mr. Dovell hurried to the entrance and was met by a strong odour of H2S. He looked inside the building and saw liquid streaming upward and careening off the ceiling. Visibility inside the building was poor; he could not see Mr. Bunz. Mr. Dovell did not have an oxygen supplying respirator with him, so he called for assistance. About 20 minutes later, Mr.

Dovell and a Harvest colleague entered the building with respirators. They found Mr. Bunz in an unexpected location. Rather than being close to his sampling point Mr. Bunz was about five feet away on the opposite end of the header apparatus. He was wedged in a 10 inch wide opening between the back of the header apparatus and the interior building wall. [7] Mr. Dovell and his colleague were unable to remove Mr. Bunz from the building. That was accomplished later after six emergency workers arrived. [ 14 ] The investigation into the events leading to Mr.

Bunz’s demise was delayed until he was removed from the building and Harvest personnel ensured the building was safe to enter. During that time, several people moved about in the area with understandably little concern for the state of evidence. As a result, the incident scene was compromised. It is likely that relevant objects - particularly those inside the building - were moved by emergency personnel and Harvest employees.

That said, it is unlikely items were added to or removed from the scene altogether. [ 15 ] Walter Tersmette, a defence witness, is a civil engineer who has extensive experience in oil field equipment design. As well, he has spent close to three decades working as a Health, Safety and Environmental Management System Specialist in the oil industry.

He was qualified as an expert and permitted to provide opinion evidence on, among other things, the subject of the design and operation of equipment in the oil field industry. [8] His evidence and that of witnesses who attended the scene support the following conclusions. [ 16 ] Mr. Bunz arrived at the facility and decided to leave his truck running; he did not expect to be there more than a few minutes. He entered the facility and decided to take a sample from a pressure gauge point on the header apparatus.

Using a crescent wrench he loosened the pressure gauge fastener and removed the pressure gauge thereby exposing the ball valve which restrained the production stream behind it. Tragically, the ball valve failed in two stages described below. [ 17 ] First, as Mr. Bunz removed the pressure gauge he unwittingly removed the retainer ring that held the ball inside the ball valve. Mr. Bunz did not notice he had removed the retainer ring because it and the pressure gauge fastener were well worn and were difficult to distinguish from each other without close inspection. The retainer ring was later found

attached to the pressure gauge fastener. [ 18 ] As he removed the pressure gauge, Mr. Bunz detected a small leak. Mr. Bunz perceived the leak as a small problem and being a diligent, dedicated employee his first instinct was to solve the problem. What Mr. Bunz did not realize was that he was in peril; the only barrier between him and the full force of the production stream was a small metal ball that– absent its retainer ring– was held in place temporarily by a thin, hard waxy substance that over time had built up in the throat of the ball valve. [ 19 ] In an attempt to stop the leak, Mr.

Bunz decided to turn off the inlet valve at the rear of the header apparatus. To do so, he had to insert himself in the small opening between the header apparatus and an interior wall. As he did, the firm waxy substance surrendered to the pressure of the production stream and the ball was ejected from the ball valve. A deadly, uncontrolled, high-pressure stream followed the ball to the building’s ceiling. Mr. Bunz was quickly overwhelmed. [ 20 ] Observations of Mr. Bunz’s truck and items around it offer some support for a conclusion Mr.

Bunz may have left the building after the first stage of the ball valve failure and returned before the second, catastrophic ball valve failure. Bearing in mind the incident scene was compromised and investigators were not able to determine what the state of the incident scene was before they arrived, I am unable to reach this conclusion. I find that Mr. Bunz was inside the building during both stages of ball valve failure and that the second failure occurred soon after the first. [ 21 ] There were no markings on the ball valve that would allow Mr. Tersmette to identify its manufacturer.

Someone linked to the investigation told him that it was an “Apollo” ball valve. Mr. Tersmette accepted this as fact and some aspects of his opinion were dependant on this belief. Unfortunately, his belief was based on hearsay if not double-hearsay. There is no reliable evidence that the failed ball valve was an Apollo ball valve. As a result, I cannot share all of Mr. Tersmette’s conclusions respecting the failed ball valve. I do accept his opinion, however, that if the retainer ring was properly installed and maintained, then Mr.

Bunz would have lacked the strength necessary to remove it with a crescent wrench. [ 22 ] There are aspects of this case that are unclear and cannot be known. There are differing positions on the significance of certain pieces of evidence and the application of the relevant law. Yet, on this point there is no doubt: Michael Bunz was a trusted, dedicated and valued employee. Ryan Folkerts, the deceased’s immediate supervisor, spoke warmly of Mr. Bunz when he described him in this way: Michael was a great guy that everybody loved, even his customers, you know.

He was a hard working guy, he was– he was my go to guy, is what I called him– if I needed something done he was the man. [ 23 ] Moreover, Michael Bunz was loved and respected as a person. Several of Mr. Bunz’s Nalco colleagues testified in these proceedings and it was evident they remain deeply moved by their loss. Michael Bunz was also a husband with a young family. His family’s devotion for him was obvious throughout these lengthy proceedings. The Charge [ 24 ] The Crown alleges Nalco contravened s. 3 - 78 of the Act by failing to meet its duty under s. 302(2)(

a) of the Regulations. 302(2) An employer shall take all practicable steps to prevent exposure of a worker, to an extent that is likely to be harmful to the worker to: (

a) a chemical substance or biological substance that may be hazardous.

[25] The charge against Nalco closely resembles the wording of s. 302(2)(a), but also claims Nalco’s omission resulted in Mr. Bunz’s death. The charge reads: Being an employer, failed to take all practicable steps to prevent exposure of a worker, to an extent that it is likely to be harmful to theworker, to a chemical substance or biological substance that may be hazardous as required by Subsection 302(2)(

a) of the OccupationalHealth and Safety Regulations, 1996 resulting in the death of Michael Bunz and did thereby contravene

Section 3-78(

g) of theSaskatchewan Employment Act. [26] After being charged with the offence, Nalco requested particulars from the Crown in order to gain a fuller understanding ofthe case it had to meet. Specifically, Nalco wanted to know what failed practicable steps the Crown was claiming resulted in the death ofMr. Bunz. In response, the Crown provided the following eight particulars: 1. Nalco failed to ensure the worker was provided with and used an approved atmosphere supplying respirator. 2.

Nalco failed to ensure a second worker, suitably equipped and trained was present and in communication with the worker at all times. 3. Nalco failed to ensure a worker was wearing his personal H2S monitor when taking samples. 4. Nalco failed to ensure a worker did not work alone in a remote location with limited to non-existent communication access whentasked with taking samples from a pressurized piping system with known concentration of H2S in excess of 1% or 10,000 ppm. 5. Nalco failed to ensure a worker conducted a Hazard Assessment prior to commencing the task of obtaining residual chemical samples. 6.

Nalco failed to ensure a worker followed the Nalco and/or Harvest H2S Codes of Practice. 7. Nalco failed to ensure the worker followed Nalco’s and/or Harvest’s personal protective equipment procedures, practices and policies. 8. Nalco failed to ensure the worker followed Nalco and/or Harvest’s procedures, policies and practices intended to address hazards, riskand controls. [27] The offence charged is, like most public welfare offences, a strict liability offence. The Crown bears the burden of provingthe actus reus of the offence beyond a reasonable doubt.

If that burden is met, then it falls to the accused to prove on a balance ofprobabilities it took all reasonable care to prevent the occurrence of the incident or that it held an honest, reasonable belief in a set offacts that if true would render its act or omission innocent (R v Sault Ste. Marie (City), (SCC), at page 1326, [1978] 2SCR 1299). The reasonable care defence is also known as the defence of due diligence. [28] That s. 302(2)(

a) of the Regulations falls into the category of strict liability is made clear by s. 3-80 of the Act: 3-80 In any proceeding 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 that was actually used to satisfy the duty or requirement.

The Issues 1. Has the Crown proved the actus reus of s. 302(2)(a)? 2. If so, has Nalco established the defence of due diligence? Analysis The actus reus [29] In order to determine what the Crown must prove to establish the actus reus of the charge it is necessary to consider thewording of s. 302(2)(

a) and of the charge. If the meaning of the provision and charge are 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 (Ontario (Ministry of Labour) v Hamilton (City), (ONCA) at para 16; R v Riemer 2012 SKPC 6 paras 72, 77, 397 Sask R 105. [30] Section 302(2)(

a) aims to protect workers from harmful exposures. The Crown must prove that Mr. Bunz was a Nalcoemployee who, during the course of his work, was exposed to a potentially harmful chemical substance that caused his death. TheCrown has done so. [31] Nalco submits, however, that s. 302(2)(

a) requires more from the Crown. According to Nalco, the expression “shall take allpracticable steps to prevent exposure of a worker, to an extent that is likely to be harmful to the worker” requires the Crown provebeyond a reasonable doubt Mr. Bunz would be exposed to H2S levels beyond contamination limits while taking the liquid samples. Ifthat was so, then only after the Crown has done so would Nalco be bound to demonstrate all practical steps were taken to avoid harmfulexposure. [32] With respect, Nalco’s

interpretation is inconsistent with the purpose of the legislation. If adopted, Nalco’s meaning wouldimpose an unreasonably onerous burden on the Crown. It is impossible to gather evidence of the H2S levels in the building when Mr.Bunz first commenced his task. Mr. Bunz was working alone and there is no witness to the incident. The H2S monitor inside thebuilding did not continuously record H2S levels in the building. As well, if Nalco’s position is that the Crown must prove that a harmfulexposure was likely under normal liquid sampling conditions then this argument must also fail.

In the first place, it would essentiallyrequire the Crown to prove beyond a reasonable doubt that harmful exposure was foreseeable. The question of whether an event isreasonably foreseeable is a question to be resolved when considering the defence of due diligence, not at the actus reus stage of theanalysis (R v Rio Algom Ltd. (1988), (ON CA), 46 CCC (3d) 242 (ONCA) at para 24 [Rio Algom]; R v BramptonBrick Ltd., (ONCA) at para 29; R v Rowlett, 2017 SKPC 12 at para 81). Second, this approach would not serve theAct’s purpose.

The defendant would not have to answer the charge unless the Crown first proved to the criminal standard of proof alikelihood of an occurrence where the defendant - by virtue of its expertise in liquid sampling - and not the Crown, is the party bettersituated to provide relevant evidence on the subject. [33] As mentioned,

section 3-80 of the Act places the onus on the defendant, not the Crown, to prove all practical steps were takento avoid harmful exposure. As the legislation allows exposure beneath the contamination limits it is necessary that s. 302(2)(

a) ensuresthe defendant is punishable only for exposures beyond the contamination limit. Bearing in mind this and the Act’s purpose, I concludethe expression “to an extent that is likely to be harmful to the worker” is a clause that modifies the practical steps requirement. It meansthe defendant must take all practicable steps to ensure the worker is not exposed to hazardous chemical substances at levels beyond theapplicable contamination limit. As a result, the expression is not relevant to the actus reus, but a factor to be considered when assessingthe availability of the due diligence defence. [34] Arguably, under s. 302(2)(

a) the Crown can raise a prima facie case on proof beyond a reasonable doubt Mr. Bunz wasengaged in Nalco’s services when he was exposed to a hazardous chemical substance and died as a result of the exposure. The provisionof further particulars, however, increases the Crown’s burden (R v Viterra Inc., 2017 SKCA 51 at paras 35-45). [35] Through additional particulars, the Crown specified the omissions it attributes to Nalco that resulted in Mr. Bunz’s death.

Therefore, to establish the actus reus of the offence the Crown must prove beyond a reasonable doubt not only the elements detailedabove, but also at least one of its particulars. Nalco submits the Crown must also prove that any particular that is proved must constitutea breach of the Act or Regulations. I do not go that far. To establish the actus reus it is not necessary to prove an offence within anoffence. Rather, the Crown’s onus is met upon proof of the particular and proof the omission was causally connected to Mr. Bunz’s

death. [ 36 ] If a particular is proven and it does constitute a breach under the Act or Regulations , but no causal connection to Mr. Bunz’s death is established, then it would be open to the Crown to seek conviction for a lesser included offence. In oral submissions, however, the Crown stated it was not seeking conviction for any lesser included offence. [ 37 ] I now turn to the particulars. 1. Nalco failed to ensure the worker was provided with and used an approved atmosphere supplying respirator. [ 38 ] Like all of Nalco’s sales representatives, Mr.

Bunz was trained in the use of atmosphere supplying respirators [respirators] and fitted for an oxygen mask. Use of a respirator involves wearing a mask and carrying an oxygen tank. Under normal breathing conditions a full tank provides a 30 minute supply of oxygen. Nalco employees were not required to wear respirators when taking liquid samples unless the client insisted on it. In the vast majority of cases the client, including Harvest, did not. On the incident date, Mr. Bunz was not wearing a respirator and did not have one with him. [ 39 ] Nalco submits its decision to not ensure Mr.

Bunz wore a respirator did not contribute to his death. In other words, Nalco argues that even if Mr. Bunz wore a respirator one cannot have any confidence he would have survived the incident. Nalco contends that to find otherwise would be to engage in speculation. Nalco’s position is based on evidence that Mr. Bunz became stuck between the wall and the header apparatus. Dave Dovell testified that two Harvest employees entered the building wearing respirators but they could not remove Mr. Bunz. Later six members of an emergency crew arrived and they removed Mr. Bunz. A photograph was taken of Mr.

Bunz’s work boot revealing a surface tear which suggests Mr. Bunz’s foot may have become lodged under the header apparatus. Mr. Tersmette provided a mixed opinion on this issue. He opined that wearing a respirator may not have assisted Mr. Bunz. He reasoned the combination of the complete ball valve failure and his foot becoming stuck might have produced in Mr. Bunz a state of panic that would cause his oxygen supply to deplete more quickly than normal. At one point under cross-examination, however, Mr. Tersmette agreed with the suggestion that Mr.

Bunz may be alive today if had been using a respirator. [ 40 ] I find that Mr. Bunz was stuck between the header apparatus and the wall. It is impossible to determine whether he became stuck before or after the ball valve’s complete failure, but it is much more likely that it occurred after the failure during Mr. Bunz’s brief opportunity to struggle for his life. It is also impossible to know for certain whether he would be alive today if he had been wearing a respirator. Yet, there are two important, reasonable inferences that may be drawn. First, Mr.

Bunz would have done everything in his power to leave the building immediately after the total ball valve failure. Second, if Mr. Bunz was wearing a respirator when the ball valve failed he would not have been quickly overwhelmed by H2S. He would have had a significant period of time – perhaps as much as 30 minutes – to defend himself. Under these circumstances, if Mr.

Bunz’s foot was not stuck before the ball valve failure he almost certainly would have easily escaped the building, and if his foot was already stuck when the ball valve failed completely, then his opportunity for a successful escape nonetheless would have been excellent given his motivation to leave and his ability to remain conscious for a significant time period. [ 41 ] With respect to this particular, the Crown has proven the actus reus beyond a reasonable doubt. 2. Nalco failed to ensure a second worker, suitably equipped and trained was present and in communication with the worker at all times. [ 42 ] Mr.

Bunz was working alone with Nalco’s approval, so this particular is proven. Under cross-examination, Mr. Tersmette agreed with the suggestion that Mr. Bunz may have been alive today if a second worker had been present. He did not elaborate on his reasoning. It is not clear whether Mr. Tersmette meant that a second worker would have been able to rescue Mr. Bunz after the second ball valve failure or whether the second worker would have convinced Mr. Bunz to leave the building as soon as the first ball valve failure occurred.

In considering this particular, I focus on the question of whether a properly equipped back-up worker could have rescued Mr. Bunz, who was not wearing a respirator, after the complete ball valve failure. I conclude that the Crown has not established a causal connection between this particular and Mr. Bunz’s demise. [ 43 ] If a second worker with a respirator had been present, Mr. Bunz would have received assistance soon after the ball valve failure occurred. Yet, we have seen that without a respirator Mr. Bunz was overwhelmed quickly by H2S and the attempts of two well equipped workers to remove Mr.

Bunz from the building were unsuccessful. Given the nature of the H2S release it is

unlikely Mr. Bunz could have been saved by the presence of a single well-equipped worker. 3. Nalco failed to ensure a worker was wearing his personal H2S monitor when taking samples. [ 44 ] Nalco supplied its sales representatives with personal H2S monitors that could be worn attached to the breast pocket of the employee’s coveralls. The monitors, like the fixed monitor at the building, would alarm when H2S levels in the atmosphere reached 10 ppm. The weight of the evidence indicates Nalco employees including Mr. Bunz wore their personal monitors regularly.

Yet, Nalco’s policy allowed its sales representatives to not wear personal monitors where, as here, there is a fixed H2S monitor on site. Mr. Bunz had a personal monitor inside his truck and it was functioning properly. He did not wear it inside the building. This particular is proven. [ 45 ] The absence of the personal monitor, however, would not have affected the tragic result. Although the personal monitor carries the advantage of being closer to the worker than the fixed monitor, the building monitor’s H2S detection function was in working order on the date of the incident.

I find it did not sound prior to the second ball valve failure because Mr. Bunz would have certainly left the building if it had. There is no reliable evidence that would support an inference his personal monitor would have sounded before the second ball valve failure either. There is no question that the fixed monitor sounded shortly after the second ball valve failure and that a personal monitor would have sounded as well. Unfortunately, both alarms would have sounded too late to assist Mr. Bunz who was overcome almost immediately after the second ball valve failure. 4.

Nalco failed to ensure a worker did not work alone in a remote location with limited to non-existent communication access when tasked with taking samples from a pressurized piping system with known concentration of H2S in excess of 1% or 10,000 ppm. [ 46 ] The Crown has proven that Mr. Bunz was working alone. The Crown has also proven that the piping system had a known H2S concentration exceeding 10,000 ppm. The evidence does not, however, convincingly support the Crown’s assertion that communication access at the facility was “ limited to non-existent”. Mr. Bunz was supplied a cell phone.

The evidence establishes that cell phone reception was poor unless one had a cell phone booster. Mr. Bunz had a cell phone booster inside his truck. Mr. Tersmette confirmed the effectiveness of the cell phone booster, albeit some three years after the incident, through testing. I am not satisfied that communications access was “limited to non-existent.” [ 47 ] Of course, given the nature of the ball valve failure Mr. Bunz would not have had time to initiate a call on his cell phone.

A significant amount of evidence was received about a safety line software application that was downloaded to the sales’ representatives’ cell phones. The application enabled a sales representative to indicate arrival at a work location and set a timer. If the worker did not stop the timer before the selected time period expired, then the application would remind the worker. If the worker did not respond to the reminder, then the application would send a message to the sales representative’s supervisor. Mr. Bunz was engaged in an activity that normally took him less than five minutes to complete.

The second ball valve failure likely occurred around that time or a few minutes later. It is unlikely the safety line would have assisted Mr. Bunz because workers tended to set the timer to intervals longer than five minutes. More importantly, when Mr. Dovell arrived on scene and quickly sought help, it took about 20 minutes for another worker to arrive with respirators. With that in mind and given the nature of the second ball valve failure it is likely a safety line alarm would not have prevented harm to Mr. Bunz. 5.

Nalco failed to ensure a worker conducted a Job Hazard Assessment prior to commencing the task of obtaining residual chemical samples. [ 48 ] Job Hazard Assessments [JHAs] are a common feature of safety management systems. In basic terms, JHAs require a worker to spend time thinking about potential hazards before commencing a task. If hazards are identified, the worker then considers how to prevent a hazard from arising and what to do if it does arise. The Act and Regulations do not set out a standard method for completing a JHA, but Nalco had written forms for its employees to complete.

There were JHA forms in Mr. Bunz’s truck. He did not prepare a written JHA for his last task. Yet, it would be impossible to conclude he did not conduct a JHA in some other manner. [ 49 ] Witnesses testified that JHAs were important, but in practice they were not always conducted before each task and when they were conducted they were not always written.

For example, sales representative James Turner testified that when the only task he was going to complete for an entire week was liquid sampling, he would complete a written JHA at the beginning of the week and prepare a non-written one mentally before each field sampling. One might argue that Nalco should have ensured written JHAs were completed for each task to have evidence workers were actually considering potential job hazards. Yet, Mr. Tersmette cautioned against this approach where workers are engaged in frequent, highly repetitive tasks like liquid sampling.

He testified that JHAs should serve as an antidote to complacency and he feared requiring workers to complete a specific written form before every repetitive task might prove counterproductive. He expressed concern workers would complete the forms reflexively with little thought given to potential dangers. In all, I cannot conclude that Mr. Bunz did not complete some form of meaningful, non-written JHA before entering the building.

[ 50 ] Moreover, this is a situation where the completion of a JHA likely would not have affected the outcome. According to Mr. Tersmette, his investigation suggested Mr. Bunz sampled at the facility on about 100 prior occasions. If Mr. Bunz had not identified a complete ball valve failure as a potential hazard in a previous assessment it was unlikely he would have done so on this occasion. 6. Nalco failed to ensure a worker followed the Nalco and/or Harvest H2S Codes of Practice. [ 51 ] Nalco and Harvest have several Codes of Practice.

Generally, the two company’s practice codes are based on the Canadian Association of Petroleum Producers’ recommended safety practices.

The Association is a recognized non-governmental leader on the subject of workplace safety in the oil and gas sector. [ 52 ] Both the Nalco and Harvest H2S Code of Practice includes a table that lists common work tasks and indicates whether safe completion of the specified task requires an H2S monitor and a respirator. [9] [ 53 ] One of the listed tasks is “breaking integrity.” Both tables require H2S monitors and respirators where workers are “breaking integrity.” During the course of the trial, eight witnesses with experience in the subject were asked whether liquid sampling was an example of breaking integrity.

Six witnesses opined that it was and two said it was not. Mr. Tersmette, the lone expert to testify, agreed with the minority. On the whole of the evidence, I am unable to decide with certainty whether liquid sampling involves breaking integrity. [ 54 ] Another task listed in the table is sampling with closed containers . For this task the tables state a H2S monitor is required, but a respirator is not. Then there is the task of sampling with open containers . According to the tables, the task requires both H2S monitoring and a respirator. [ 55 ] According to Mr. Folkerts and Mr.

Tersmette, the liquid sampling that Mr. Bunz performed was conducted with open containers. Despite the content of the table, neither Mr. Folkerts nor Mr. Tersmette believed a respirator was required for the task. Mr. Tersmette could only make sense of the respirator requirement in the table by reasoning it must be referring to sampling from a gas source not a liquid source. When asked for examples of situations where workers would use open containers to sample a gas he could not think of any.

Nalco submits that the table included in the H2S Code must be read in context with its entire Code of Practice to determine what personal protective equipment was required for Mr. Bunz when he took liquid samples. Nalco argues that if there is reasonable doubt about what was required, then it must be the beneficiary of that doubt. [ 56 ] I will deal first with Nalco’s Code of Practice and then turn to Harvest’s Code. For each Code, I will determine whether it required Nalco to ensure Mr.

Bunz wore a personal H2S monitor and a respirator. [ 57 ] As for the subject of wearing personal H2S monitors when sampling with open containers, Nalco was not in contravention of its own Code.

Section 2.5 of the Code states that wearing a personal monitor is necessary unless remote sensing is present.

Section 2.4.2 of the Code notes remote sensing is conducted by fixed monitors. This would include the fixed monitor in the building at the facility. [ 58 ] It is common ground that Nalco was bound to follow Harvest’s safety practices due to a Master Service Agreement signed by the parties. Harvest’s H2S Code of Practice is almost identical to Nalco’s Code. With respect to H2S monitors there is, however, an important difference. [ 59 ] Harvest’s H2S Code does not make a distinction between monitoring through remote sensors and personal monitors.

Unlike the Nalco Code, a plain reading of the Harvest Code requires workers to carry personal monitors in all circumstances where they may be exposed to H2S even if fixed monitors are present. Nalco did not ensure Mr. Bunz wore his personal monitor and as a result it is in breach of this requirement.

That said, as noted previously, the presence of a personal monitor would not have affected the outcome in this case and consequently the actus reus is not proven. [ 60 ] The table that appears in Nalco’s H2S Code is prefaced with these words: “ the following table should be used as a guide to operations where high hydrogen sulphide exposures may be expected.” It states the table is not intended to be “comprehensive” and

workers should conduct risk assessments before the task is commenced. The risk assessment should take into account the H2S content in the production stream, previous exposure monitoring results, operational factors including the pressure in the process stream, and ventilation. [ 61 ] The risk assessment requirement renders the table’s meaning less clear. Two possible

interpretations emerge. First, the risk assessment may be required only for work tasks that are not specified in the table. That would mean the tasks specifically listed in the table and their required protections stand alone and are mandatory. Alternatively, it could mean all work tasks – specified and non- specified– require a risk assessment to determine what personal protective equipment is required. The latter

interpretation would mean the requirements listed in the table are presumptive, not conclusive. [ 62 ] There is some support for the second

interpretation elsewhere in the Nalco Code. At

section 2.4.3 of the Code, the subject of using detector tubes to sense H2S is addressed. Mr. Folkerts testified that detector tubes may be used while liquid sampling. In describing the use of detector tubes, the Code describes liquid sampling as a “low risk” situation where respirators may not be required. It seems then, that under the Nalco Code, liquid sampling with open containers may sometimes involve a high H2S exposure, but other times not. Consequently, it may require a respirator in some cases but not in others. [ 63 ] Clearly, the H2S exposure level the Code seeks to prevent is 10 ppm.

The Code requires all monitors to be set to alarm at 10 ppm and states respiratory protection must be worn when entering an atmosphere that exceeds 10 ppm. Thus, when the commentary that introduces the table refers to “high hydrogen sulphide exposures” it is referring to situations where levels exceeding 10 ppm may be expected. As well, the requirement of a respirator for open container sampling but not closed container sampling reveals a concern with H2S flowing into and out of the container and not necessarily a concern with the valve from which the sample is drawn. [ 64 ] According to Mr.

Tersmette the production stream at the facility was 99.6% fluid and .4% gas. The H2S level in the gas was 2.5% or 25,000 ppm. There was also H2S in the fluid, but it would not be released unless it was highly pressurized or agitated. He opined that even after the catastrophic release of production fluid following the second ball valve failure, the H2S that overwhelmed Mr. Bunz was contained in gas and not released from fluid. Mr.

Tersmette testified that drawing a liquid sample often results in a small release of fluid and gas, but given the amount of gas release and the H2S concentration in it there was very little chance a H2S release would reach 10 ppm during normal liquid sampling at the facility. [ 65 ] As mentioned, it is unclear whether Mr. Bunz performed a JHA before sampling that morning. As to the criteria the Code states should be considered when deciding how to safely proceed, it is unlikely he knew the production stream’s precise H2S content or pressure. Nonetheless, Mr.

Bunz was trained regarding the danger of H2S and he undoubtedly knew the H2S content in the production stream could be lethal and that the production stream was pressurized. Further, Mr. Bunz would have been familiar with prior monitoring results and the building’s ventilation because he regularly sampled at that location. [ 66 ] Taking into account the uncertainty in the wording of Nalco’s Code and the evidence of Mr.

Tersmette, I am not satisfied that Nalco failed to abide by its self-imposed respiratory protection requirements. [ 67 ] I come to the same conclusion when considering Harvest’s similarly worded H2S Code of Practice. I find the Crown’s claim that Nalco breached Harvest’s H2S Code stronger than its claim that Nalco breached its own Code of Practice. The

section of the Harvest Code that precedes its table refers to “possible sources of H2S” not “high hydrogen sulphide concentrations” and unlike Nalco’s Code the Harvest Code makes no mention of liquid sampling being a low risk activity.

That said it mirrors the Nalco Code in that it refers to its table as a guide, it requires a pre-job risk assessment to determine what protection is required, and it clearly is concerned with H2S levels that exceed 10 ppm. [ 68 ] In conclusion, I find that with respect to the use of respiratory protection the Crown has not proven Nalco breached its own H2S Code of Practice or Harvest’s H2S Code. That is because the requirements of each Code are less than clear. It may be ironic that a lack of clarity in Nalco’s and Harvest’s Codes should amount to a defence to the allegation.

Yet, this result flows directly from the Crown’s burden to prove the particulars it has alleged. 7. Nalco failed to ensure the worker followed Nalco’s and/or Harvest’s personal protective equipment procedures, practices and policies.

[ 69 ] The Nalco Code of Practice states Nalco shall determine the need for respiratory protection wherever a worker may be exposed to an airborne contaminant in a concentration exceeding the contamination limit. Nalco fitted its employees for oxygen supplying respirators and made them available on request. It may be that Nalco required respiratory protection for certain tasks, but in practice it did not require it for liquid sampling and, as I have found, its H2S Code of Practice did not clearly require respiratory protection for workers engaged in liquid sampling.

Several witnesses testified to taking hundreds of liquid samples every year. Witnesses estimated that their personal monitors sounded perhaps three or four times a year and that they were able to walk away from the source of the alarm. It is possible, if not likely, that in accordance with its Code of Practice Nalco did assess the risk or airborne contaminants beyond the contamination limit and determined respirators were not required for its liquid samplers unless the sampler or a client insisted on it. I am unable to find that Mr. Bunz did not comply with this policy.

As a result, I am not satisfied that Nalco failed to ensure he followed its Code. [ 70 ] Harvest’s Respiratory Protection Code of Practice calls for respiratory protection where there is a risk the atmosphere may pose a hazard to the worker. At appendix A of its Code it identifies H2S exposure as a risk and recommends wearing a respirator where workers face H2S levels greater than 10 ppm. Obviously, Mr. Bunz was exposed to H2S in an amount far exceeding the contamination limit. Yet, before the ball valve failure the likelihood of exposure beyond contamination limits was low and Mr.

Bunz was not required to work in an area once the atmosphere exceeded 10 ppm. In fact, Nalco employees were instructed to walk away if that occurred. I am not satisfied that Mr. Bunz did not follow Harvest’s Respiratory Protection Code. Consequently, I do not find Nalco failed to ensure he followed the Harvest Code. 8. Nalco failed to ensure the worker followed Nalco and/or Harvest’s procedures, policies and practices intended to address hazards, risk and controls. [ 71 ] The Crown relies on the same argument it made respecting JHAs in particular #5 above. I come to the same conclusion here as I did there.

Due Diligence [ 72 ] Nalco did not ensure Mr. Bunz used a respirator . Nalco bears the burden of proving on a balance of probabilities it nonetheless took all practicable steps to prevent Mr. Bunz from being exposed to H2S. In order to discharge its burden, Nalco must meet the standard set out in paragraphs (

a) or (

b) of

section 3 - 80 of the Act : (

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 that was actually used to satisfy the duty or requirement. [ 73 ] Paragraphs 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 disproportion between the benefit of the duty and the cost, in time, trouble and money, of the measures to secure the duty [ 74 ] Following Mr. Bunz’s death, Nalco requires all of its sales representatives to wear oxygen supplying respirators when drawing

liquid samples. Clearly, the provision of a respirator is a measure both practicable and reasonably practicable within the meaning of paragraph 3-80(

a) of the Act . [ 75 ] Under paragraph 3-80(

b) the question is whether Nalco took the best practicable means to satisfy its duty under the Act . Pursuant to regulation s. 302(2), Nalco’s duty was to prevent Mr. Bunz’s exposure to H2S to the extent is was likely to be harmful to Mr. Bunz. If harmful exposure to Mr. Bunz was unlikely given the practicable steps Nalco had already taken, then Nalco was not required to go further. Therefore, determining whether Nalco met its duty requires a consideration of the likelihood Mr. Bunz would face a harmful exposure when he set out to draw liquid samples at the facility.

Essentially, the question posed is whether the exposure that occurred was reasonably foreseeable . [ 76 ] In Rio Algom , the Ontario Court of Appeal held that whether an event is reasonably foreseeable is an important factor in determining the issue of due diligence. The Court went on to stress that it is the potential danger that must be reasonably foreseeable, not the precise manner in which the incident unfolded. In the present case, the type of danger that arose was a rapid, uncontrolled release of high pressure H2S. The exact mechanism that caused the release is not significant.

The question is simply whether the type of H2S release that overwhelmed Mr. Bunz was reasonably foreseeable. [ 77 ] In R v 101009484 Saskatchewan Ltd. , 2011 SKPC 31 , 391 Sask R 88, Judge Harradence adopted the approach of Justice Hillier in R v Lonkar Well Testing Limited. , 2009 ABQB 345 , 473 AR 1 wherein the Justice states: [62] For a potential danger to be foreseeable, there must be at least a reasonable prospect or expectation that it will arise. “Foreseeable” is not the equivalent of “imaginable”. If s-s. 2(1)(a)(

i) required not only foreseeing and addressing a potential danger so as to ensure the health and safety of workers, but imagining all the bizarre and unforeseeable situations which might create a further danger, then the employer’s liability under this provision would be absolute.... [ 78 ] To assess whether an H2S release of such a nature could be reasonably expected, it is helpful to first consider whether any release above the contamination limit was likely during liquid sampling. According to the trial evidence an experienced sampler like Mr.

Bunz would ordinarily take one to five minutes to complete the task. Therefore, even if an exposure occurred that was above 10 ppm it likely would fall well below the time period required to breach the contamination limit. Further, if 10 ppm was exceeded the building’s fixed monitor would have sounded and in all likelihood Mr. Bunz would have withdrawn well before the exposure limit was breached. Moreover, Mr.

Tersmette’s examination of the content of the production stream and his own testing within the facility– albeit three years after the event– led him to the conclusion a possible breach of the contamination limit was highly unlikely. Finally, and more generally, witnesses who have taken hundreds of samples in the course of a year estimated their personal monitor sounded only a few times on those occasions. All of this demonstrates that an H2S release of more than 10 ppm was rare when liquid sampling and an exposure of that nature beyond the temporal component of the contamination limit was extremely unlikely.

In fact, the only instance in which one could imagine an exposure to levels beyond 10 ppm for a long period would be where, as here, the quantity of H2S in the atmosphere far exceeds 10 ppm and quickly renders the worker unconscious. That returns us to the question of whether an uncontrolled, rapid, high-pressure release of H2S could be reasonably expected. [ 79 ] At the time of the incident, Nalco’s operations in Saskatchewan and Manitoba were responsible for sampling in relation to about 7,000 oil wells operated by perhaps 50 oil producing clients.

The sales representatives who testified at trial were responsible collectively for thousands of liquid samples taken over many years. No one testified to having witnessed or even heard of a similar H2S release during liquid sampling. Only one of Nalco’s clients insisted that Nalco’s sales representatives wear respirators when liquid sampling at their facilities. Of course, this does not mean that the 49 or so other companies were correct in not requiring respirators, but it does support an inference that lethal exposures for liquid samplers was extremely rare if not unprecedented.

This is also reflected in the H2S training materials that consistently direct workers to leave the area if there is an H2S release. In other words, the training material contemplates H2S releases, but not releases of the type that killed Mr. Bunz. Finally, Mr. Tersmette, with over 20 years of experience in studying safety issues in the oil and gas sector in Western Canada, was not aware of a similar H2S release in a liquid sampling scenario. [ 80 ] The Crown submits that notwithstanding the absence of prior, similar events, the incident that took Mr. Bunz’s life was reasonably foreseeable.

The Crown claims the likelihood of a complete ball valve failure can be inferred from smaller valve failures. It relies on the evidence of witnesses who in describing the liquid sampling process spoke of “leaky valves”, “pressure behind valves”, and of making certain “ the valve was holding” when removing the pressure gauge at the sampling point. [ 81 ] Kelly Orsted provided some of this evidence and added helpful context in understanding the evidence.

He testified that often a small amount of liquid and gas is trapped between the gauge and the valve, so the worker should remove the gauge slowly to release this pressure. If the valve is leaking then the worker may be sprayed with a small amount of fluid. In that case, the worker is trained to re-fasten the pressure gauge, leave the area, and notify the facility operator. Mr. Orsted observed this situation five or six times in his 10

years of sampling. Thus, in his experience, faulty valves were rare and their associated fluid discharge was slight. This would not suggest a catastrophic, high pressure release should be expected. [ 82 ] The Crown submits that Ryan Folkerts envisioned a similar scenario long before the present incident occurred. Under cross- examination, Mr. Folkerts was asked to describe Nalco’s safety meetings. Among other things, he said each sales representative was required to create a scenario that raised safety awareness. As an example, Mr.

Folkert’s testified that at one meeting he considered what would happen if there was an uncontrolled leak in an injection pump line while he was taking a sample from the line. His solution for this problem was to run from the scene rather than don a respirator before taking on the task. Mr. Folkert’s choice of remedy suggests he did not think his scenario was realistic. Like Mr. Bunz, he was trained in the dangers of H2S. He must have known a high-pressure, uncontrolled release would be very difficult to escape.

If he thought there was a reasonable possibility of such a release he would have surely suggested wearing a respirator before drawing the sample. More importantly, there is a material difference between the scenario envisioned by Mr. Folkerts and the present incident. In Mr. Folkert’s scenario the injection pump line he sampled from had a pressure of 3,000 pounds per square inch. The production stream that Mr. Bunz was facing held pressure, according to Mr. Tersmette, of about 100 pounds per square inch. This too, would suggest that the scenario imagined by Mr.

Folkerts, though unlikely, was in fact more likely than the present occurrence. [ 83 ] The Crown also relies on a JHA completed by Kelly Orsted in 2008 as evidence the H2S release that occurred in this case was reasonably foreseeable. Mr. Orsted’s JHA contemplates the task of “sour liquid sampling at wellhead” which is a task similar to the work undertaken by Mr. Bunz. The assessment breaks the task into several steps. One of the steps is called “ Take Fluid Sample.” Mr. Orsted rates the probability of a plugged valve and gas fluid release as likely.

He reports the severity associated with the occurrence may include a fatality or catastrophic property damage. On its own, this information indicates Mr. Orsted considered the possibility of a major H2S release to be significant. [ 84 ] Mr. Orsted was not questioned about this document when he testified. That is unfortunate because his testimony seems at odds with the content of his 2008 JHA. As mentioned, he testified he saw only five or six faulty valves in 10 years of sampling (Mr. Orsted began liquid sampling around 1999). As well, when asked if he had anticipated an incident such as the one involving Mr.

Bunz he said he did not. [10] Perhaps Mr. Orsted’s view of the risk changed sometime during the eight years between his completion of the Job Hazard Assessment and his testimony in court. Regardless, Mr. Orsted had as much relevant experience as any other witness and was the highest ranking former Nalco employee to testify at trial. At the time he testified he was no longer working for Nalco, having taken a position with another company three years earlier. He was an impressive witness and I accept his testimony in full. With that in mind, I accept that he, like Mr.

Folkerts, contemplated the possibility of a high pressure H2S release, but I am unable to conclude he thought such release was at all likely. [ 85 ] Having weighed all of this evidence carefully, I conclude that the potential danger that became a tragic reality in this case was imaginable, but not reasonably foreseeable. [ 86 ] This does not end the matter, however. It is also necessary to consider the safety steps Nalco had in place to prevent harmful chemical exposures.

There was a large amount of documentary and vive voce evidence received on this subject that I will summarize below. [ 87 ] In general, Nalco developed a formal Health and Safety Management System that was subject to regular review and audit. Its safety system included formal written procedures, online training, hands-on training, supervision, performance reviews and safety meetings. The meaning of procedures and the likelihood of potential dangers were discussed at the safety meetings.

Nalco never hesitated to purchase safety equipment for employees when needed or requested. [ 88 ] The Crown argues that Nalco promoted a “culture of discretion” by allowing employees to decide when safety equipment, such as respirators were required. It is true that Nalco did not require its sales representatives to wear respirators when taking liquid samples, but would endorse the practice if a client insisted on it or, presumably, if an employee did. Yet, I do not interpret this position as delegating the decision to the employee.

Rather, I infer that Nalco had made a decision that respirators were not ordinarily required for liquid sampling. Nalco held to that position, but would accommodate the client or employee who felt otherwise. [ 89 ] In terms of liquid sampling, Nalco’s sales representatives received practical training under supervision and could not take liquid samples alone without demonstrating competency in that specific task. Mr. Bunz was trained in liquid sampling and was competent and experienced. [ 90 ] With respect to H2S, Mr. Bunz had successfully completed regular training and Nalco developed relevant Codes of Practice

based on industry standards. Workers were required to stop work and leave the area if H2S alarms sounded. The building in which the incident occurred was equipped with a functioning, permanent H2S monitor. Sales representatives were also required to have personal monitors that were regularly calibrated. Mr. Bunz had a properly functioning personal monitor in his truck. [ 91 ] Finally, I stress the evidence of Mr. Tersmette. He opined that Nalco’s health and safety management system was sound.

He also considered it very unlikely that someone taking a liquid sample at the building would encounter an H2S exposure beyond the contamination limits. As such, he considered a respirator unnecessary. Conclusion [ 92 ] Under s. 302(2) of the Regulations , Nalco was required to take all practical steps to prevent Mr. Bunz from being exposed to H2S levels beyond the contamination limit. Although the use of a respirator may have spared Mr. Bunz, the nature of the H2S release that took Mr. Bunz’s life was not reasonably expected.

Much smaller, short-term H2S exposures were reasonably foreseeable and Nalco had appropriate equipment and procedures in place to ensure such exposures would not exceed the contamination limit. Having regard to the whole of the evidence, I am satisfied on a balance of probabilities there was no better practical means than was used by Nalco to prevent an H2S exposure beyond the contamination limit. As a result, I dismiss the charge. ___________________________ L. Wiegers, J