Her Majesty the Queen - v. -, 2019 SKPC 12

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 12 Date: February 8, 2019 Information: 90215214 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - 654963 Alberta Ltd. (o/a Brovac Mobile Vacuum Truck Services) Appearing: S. Bains For the Crown B. Mitchell For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The defendant company (Brovac), is a family run business operating out of Medicine Hat, Alberta.

The company provides on-site industrial vacuum truck services to oil well operations to essentially remove water and mud debris from the drilling excavation. [ 2 ] On January 12, 2017, Brendan Hertz (Brendan) was in charge of a Brovac vacuum truck on a job site approximately 30 miles from Kindersley. During his shift he sustained a significant injury to his right hand when it became entangled in a chain-driven

assembly of an “agitator” unit mounted on the truck. [ 3 ] The evidence disclosed that Brendan placed his hand down and under the safeguard to check an oil seal leak causing his hand to become caught in the rotating gears. [ 4 ] Brovac was subsequently charged that it did: 1) Fail to give notice to the division as soon as is reasonably possible of every accident at a place of employment that will require a worker to be admitted to a hospital as an in-patient for a period of 72 hours or more, as required by Subsection 8(1)(

b) of The Occupational Health and Safety Regulations, 1996 , contrary to Subsection 3-78 of The Saskatchewan Employment Act . 2) Being an employer, fail to provide an effective safeguard where a worker may contact a dangerous moving part of a machine as required by Subsection 137(1)(

a) of The Occupational Health and Safety Regulations, 1996 resulting in a serious injury to a worker namely Brendan Hertz, contrary to Subsection 3-78(

g) and

Section 3-79 of The Saskatchewan Employment Act . 3) Failed to ensure that before a worker undertakes the maintenance, repair, test or adjustment of a machine, the machine is locked out and remains locked out during that activity if not doing so would put the worker at risk, as required by Subsection 139(1) of The Occupational Health and Safety Regulations, 1996 resulting in a serious injury to worker, namely Brendan Hertz, contrary to Subsection 3-78(

g) and

Section 3-79 of The Saskatchewan Employment Act . [ 5 ] Count #1 of the Information was stayed at the outset of trial. [ 6 ] Crown and defence each called one witness, being Brendan Hertz (victim) and Brian Hertz (father and owner of the company), respectively. [ 7 ] The following exhibits were entered at trial by consent: Exhibits P-1 Corporate Records P-2 Medical Records P-3 Photocopies of Safeguard Photographs P-4 Brovac Incident/Accident/Near Miss Investigation Report D-1 B-820 1200 RPM Printout D-2 Photograph of B-820 1200 RPM D-3 Brovac Hazard Assessment/Safety Meeting/Work Permit D-4 Orientation for New Workers D-5 Brovac Behaviour Observation Checklist D-6A Brovac Safety Meeting Minutes - April 29, 2010 D-6B Brovac Safety Meeting Minutes - October 26, 2010 D-6C Brovac Safety Meeting Minutes - November 2, 2012 D-6D Brovac Safety Meeting Minutes - October 27, 2015 D-7 Mechanical Mobile Equipment (Safety Manual)

D-8 Lockout, Tagout (Safety Manual) Strict Liability Offences [ 8 ] The charges before the Court are strict liability offences requiring the Crown to prove the actus reus beyond a reasonable doubt.

There is no necessity to prove mens rea as such is presumed in the doing of the act. [1] [ 9 ] If the Crown has proven the actus reus , the onus shifts to the accused to establish, on a balance of probabilities, whether the defence of due diligence has been made out – in other words whether it was reasonably practicable in the circumstances to have done anything more. [2] II THE CHARGES Count #2 - Effective Safeguard [ 10 ] The Occupational Health and Safety Regulations, 1996, c O-1.1, Reg 1, provide:

Section 2 (aaa) “ safeguard ” means a guard, shield, wire mesh, guardrail, gate, barrier, safety net, handrail or other similar equipment that is designed to protect the safety of workers . . . Safeguards s. 137(1) Except where otherwise provided by these regulations, an employer or contractor shall provide an effective safeguard where a worker may contact:

a) a dangerous moving part of the machine; [ 11 ]

Section 3-80 of The Saskatchewan Employment Act [3] states: 3-80 In any proceedings for an offence pursuant to this Part or the regulations made pursuant to this Part respecting a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, the onus is on the accused to prove, as the case may be, that: (

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

b) there was no better practicable means than was actually used to satisfy the duty or requirement. [ 12 ]

Section 3-1(

x) of The Saskatchewan Employment Act reads: “ practicable ” means possible given current knowledge, technology and invention;

Section 3-1(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; Actus Reus [ 13 ] Crown and defence differ on what constitutes the actus reus of this offence.

The Crown maintains that proof that the safeguard was not effective lies in the fact that the incident occurred (the defendant being an employer is not in issue). [ 14 ] The defence position is that by reason of the wording of s. 3-80, the Crown must prove beyond a reasonable doubt, that the company did not have in place an “effective safeguard”.

In other words, the mere fact that an incident occurred does not necessarily mean that the safeguard was not effective. [ 15 ] The Crown cites R v Rose’s Well Services Ltd. (Dial Oilfield Services) [4] [ Rose’s Well Services Ltd. ] in support of its position at paras 68 to 70: [68] In this regard, I am in general agreement with the position taken by the Crown: that to establish the actus reus of the general duty offence , the Crown may in some cases stop at the facts of the incident - the accident itself - as proof of the actus reus . [69] This position adopts the “accident as prima facie breach” concept, which I endorse. [70] The consequence of a framework that places an employer in the role of someone who is responsible for ensuring statutory and regulatory compliance is that it offers a clear pathway for delineating the actus reus , especially in cases involving the breach of a general duty provision .

This approach is a mechanism relied upon in accordance with the regime of strict liability that aims to hold an employer strictly responsible for complying with public interest legislation.

Therefore, once a breach has been established, prima facie , by virtue of an accident in the workplace despite a statutory regime designed to prevent such occurrences, then it is up to the employer to prove that it complied with the regulations and did all that it reasonably could to prevent the accident from happening. (emphasis added) [ 16 ] The Crown posits that the concept of “accident as prima facie breach” in strict liability cases has been accepted as the prevailing law in our province. [ 17 ] The Court is of the view that although this may apply to general duty offences, as referenced in Rose’s Well Services Ltd. , it would not extend to situations where the Crown has particularized the offence.

In such cases, the elements of the offence, as particularized, must be proven beyond a reasonable doubt. [ 18 ] In R v Viterra Inc. [5] , our Court of Appeal stated at paragraphs 35-36: [35] These decisions hold that proof of an accident may be sufficient to establish the actus reus of an offence, but this will depend on how the charge is particularized. [36] This also appears to be the reasoning used in R v BC Tel , 2004 BCCA 204 , 197 BCAC 41 [ BC Tel] , where the British Columbia Court of Appeal ruled that the lower court judge made no error in acquitting the accused after concluding that the Crown failed to prove its case, given how it had chosen to particularize the offence in the charge.

Therefore, if the charge only contained the general allegation that the employer failed to ensure the health and safety at work of an employee contrary to s. 124 of the Canada Labour Code , it would appear that proof of an accident would be prima facie proof of the actus reus . In effect, a broadly-worded charge would lower the Crown’s hurdle to clear in proving the actus reus , but the door would remain open for the defendant to show, on a balance of probabilities, that it exercised due diligence. On the other hand, a charge that is particularized presents more elements for the Crown to prove .

And further at paragraph 45-46: [45] Following the reasoning in these cases, I find the actus reus of a contravention under ss. 124 and 125 of the Canada Labour Code is not necessarily established by the proof of the injury or death of an employee at the workplace. All of the necessary elements of the actus reus , as particularized in the charge, must be proven. In reviewing the particulars in issue here, I do not find any error in the trial judge’s articulation of the actus, reus , namely, that the Crown must prove beyond a reasonable doubt that Viterra failed in the following: (

a) failed to instruct the deceased “on how to unplug a blockage in a receiving pit” (at para 14) of a grain elevator in a manner that provided for his health and safety (counts 1 and 2); (

b) failed to ensure the deceased had the necessary training and supervision “to ensure his health and safety when responding to a blockage” inside the receiving pit of a grain elevator (counts 3 and 4); and (

c) failed to ensure that the deceased was “aware of the hazard of being engulfed” by free flowing grain in a receiving pit at a grain elevator (counts 5 and 6). [46] The Crown chose to particularize the offences in counts 1 to 4 on the basis that instruction “on how to unplug a blockage inside a receiving pit” and training on how to respond “to a blockage inside the receiving pit” was required.

Therefore, the onus was on the Crown to prove it was necessary to provide such instruction and training to the deceased. [ 19 ] Similarly, the Alberta Court of Appeal in R v Precision Diversified Oilfield Services Corp . [6] [ Precision ], came to the same conclusion, rejecting the general principle of “accident as prima facie breach” as applicable to particularized offences – in the case “as far as it is reasonably practicable for the employer to do”. [ 20 ] At paragraphs 42-43 the Court in Precision stated: [42] Not all aspects of the actus reus are at issue in this appeal.

For example, the Crown agrees that under s. 2(1) of the OHSA , it was required to establish that Precision was an “employer” under the OHSA and Mr. Petersen was a “worker”. What is at issue is whether the expression “as far as it is reasonably practicable for the employer to do so” is an element of the actus reus or whether it is merely the legislature’s attempt to codify the common law due diligence defence described in Sault Ste. Marie . [43] For the reasons that follow, I find that the expression “as far as it is reasonably practicable for the employer to do so” forms one element of the actus reus .

As a result, for an offence under s. 2(1) of the OHSA , the Crown must establish beyond a reasonable doubt the following: (1) the worker must have been engaged in the work of the employer; (2) the worker’s health or safety must have been threatened or compromised (i.e. an unsafe condition); and (3) it was reasonably practicable for the employer to address the unsafe condition through efforts that the employer failed to undertake. And further at paragraph 49: [49] The words of an enactment define the actus reus of an offence: R v Beatty , 2008 SCC 5 at para 43 , [2008] 1 S.C.R. 49 .

Further, it is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain: Quebec

(Attorney General) v Carriéres Ste-Thérèse Ltée, (SCC), [1985] 1 SCR 831 at 838, 20 DLR (4th) 602.

As a result, everyword and provision in a statute is supposed to have a meaning and function, and the courts should avoid, as much as possible, adoptinginterpretations that would render any portion of a statute meaningless or pointless or redundant: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham Ont: LexisNexis Canada Ltd., 2014) at §8.23 [21] The end result is that the Court held that the Crown was required to prove something more than just the incident in order to convict Precision.[7] [22] The Crown argues in the present case that to accede to the defence position would require the Crown to prove a negative –that the safeguard was “ineffective”.

How the Crown would meet its burden, however, in a particularized charge was addressed inPrecision as follows at paragraph 59: [59] The Crown will be able to meet its obligation by looking to the evidence about the circumstances of the unsafe conditionand incident, any permissible inferences from that evidence, common sense, the OHSA and Safety Code, or what is revealed through aformal investigation under the OHSA. The OHSA sets out a comprehensive regime that allows investigators to gather information aboutthe cause of an incident and the employer’s preventative efforts.

Safety officers have a broad right to attend at the scene of a workplaceincident and investigate the causes of the incident: OHSA, s. 19(1). An employer must also adopt a written health and safety policy(OHSA, s. 32), which will often provide some evidence of the employer’s efforts to prevent worker injury – or the lack thereof.

Occupational health and safety prosecutions are not faced with the same evidentiary vacuum as many other regulatory prosecutions. [23] In the circumstances, the Court finds that count #2 is not a general duty offence requiring the Crown to establish only that theincident occurred to prove the actus reus.

Rather, it is a “particularized charge” where the Crown must prove beyond a reasonable doubtthat the defendant “failed to provide an effective safeguard where a worker may contact a dangerous moving part of the machine.” [24] The Court must then examine the nature and quality of the safeguard and the circumstances concerning the incident. [25] According to the evidence, the safeguard consisted of a wire mesh shield covering the rotating parts of the chain and sprocket assembly down to a few inches from the floor. It was industry standard[8], built and supplied by the manufacturer.

It was in use onhundreds of like trucks in the oilfield. [26] No injury had ever occurred in relation to this safeguard in the 10 years since acquisition by the defendant.

In all respects, it appeared practicable for its purpose given the “current knowledge, technology and invention” utilized in the industry.[9] [27] Judging from the photographs and oral testimony in evidence, no injury would have occurred in the present case but for theconsiderable and determined efforts of the victim to circumvent the safeguard’s protection and neutralize its efficacy. [28] Accordingly, the Court finds that the defendant provided an “effective safeguard” in accordance with the particulars of thecharge and therefore the actus reus has not been proven beyond a reasonable doubt.

To hold otherwise, in the Court’s view, would be toconflate “effective” to “fool proof” elevating the offence effectively to one of absolute liability, should an injury occur. Due Diligence [29] If the Court is in error on its determination and reasoning with respect to the actus reus on count #2, for the reasons thatfollow, the Court nonetheless finds that the defendant has established, on a balance of probabilities, the defence of due diligence on thischarge. [30] The defendant company had solid safety measures in place. Safety manuals are kept in each truck and on the shop floor.

Each new employee receives safety training and is field-tested on the trucks and equipment before being cleared to operate them. Specific log out/tagout policies are in place mandating that equipment be shut down before attempting any maintenance or other procedures. Regular monthly safety meetings are held to discuss specific and general safety policies. Outside safety monitoring agencies are employed to audit safety policies and recommend necessary changes which are then implemented. The company scored high on its evaluations and was deemed by the employees to be receptive and approachable with respect to safety measures. [ 31 ] As far as Brendan Hertz, specifically, was concerned:

a) he had been employed by Brovac for a period of 12 years, 6 part-time and 6 full-time, leading up to the date of the incident;

b) he had never been the subject of any disciplinary proceedings;

c) he had taken repeated training regarding safety and company policies throughout his employment including with respect to the operation of the agitator equipment;

d) he had taken the initiative himself to place agitator sticker procedures in each truck;

e) he had operated the particular equipment routinely before the accident without incident;

f) he never had attempted to perform any procedure regarding moving equipment without first locking it out as per company policy at any time in the past; and

g) he was well aware of the safety and lock out protocols the company had in place prior to performing any maintenance or repairs on any moving parts of any machinery. [ 32 ] In R v Jamel Metals Inc. , [10] the Court cited R v British Columbia Hydro and Power Authority [11] with approval, at paragraph 19: In my view, it is not sufficient to speculate on what might have been done, what controls might have been in place, but rather to examine what was done, what controls were in place, what was the state of technology, that existed through the evidence of lay and expert witnesses to determine if the accused acted reasonably in the circumstances.

Therefore, careful examination of the accused’s operation through the evidence of witnesses is required. In other words, an accused must take all reasonable steps to avoid harm. However, that does not mean an accused must take all conceivable steps. [ 33 ] Assessing what steps an employer should take to address future risk of harm involves the notion of foreseeability, as discussed in R v Lonkar Well Testing Ltd. [12] at para 62: [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)(1), 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. This approach would essentially render meaningless the phrase “as far as reasonably practicable”. [ 34 ] In R v CIC Foods Inc. , [13] the company was charged with failing to provide an effective safeguard after a worker had two fingers severed from a moving conveyer belt.

As summarized in the defendant’s brief, the defendant successfully established the defence of due diligence in paras 91 to 97:

i) the worker was “the author of her own misfortune”; ii) she was recently the subject of orientation training where the importance of keeping her hands away from belts was emphasized; iii) she knowingly defied the existing safety rules by wearing her engagement ring on her finger while at work when the injury occurred; iv) she abandoned her own work station and proceeded to another machine when she knew that no supervisors were present;

v) she ignored a sign attached to the machine in question that read, “Danger, Watch Your Hands and Fingers”; vi) to the employer’s knowledge, no other employee had ever been injured by placing a hand in the nitrogen tunnel, and it was apparent that if it would have happened before, the conduct would not be tolerated or encouraged; vii) the three prior Occupational Health and Safety inspections that occurred at site prior to the accident raised no concerns over the guards in place at the mouth of the nitrogen tunnel; and viii) when watching the video of the incident, the OH & S inspector himself was heard uttering words to the effect of, “I don’t know why she stuck her hand in there.” [ 35 ] As stated by Beasly J in R v Timminco Ltd. [14] at para 70 : [70] Although the primary responsibility for worker safety is appropriately placed on the employer by The Occupational Health and Safety Act , it is clear that the Act envisions shared responsibility between all parties.

Just as any employee has the right to expect compliance by the employer, so does the employer expect that any individual employee will govern his or herself appropriately and by their conduct make the workplace safe and secure for all. [ 36 ] In the present case, the employer took all reasonable steps to have prevented this incident.

It was Brendan’s own “rogue actions” [15] which were unforeseeable in the circumstances and caused the unfortunate injuries to him. [ 37 ] The fact that the defendant added an additional safeguard after the accident happened to prevent any reoccurrence does not detract from the determination of “reasonable foreseeability” in the first instance.

As stated in R v Value Drug Mart Associates Ltd. , “… The wisdom gained by hindsight is not necessarily reflective of reasonableness prior to the incident” [16] Count #3 Failing to Ensure Machine Locked Out Before Undertaking Repair Actus Reus [ 38 ] The defendant concedes that the Crown has proven the actus reus of this count. [17] Due Diligence [ 39 ] On the incident date, Brendan had been alerted by a co-worker that there appeared to be a slight leak from a front seal located near the agitator drive shaft.

Pursuant to company policy, he contacted his supervisor, in this case, his father, and informed him of the leak. [ 40 ] Both Brendan and his father confirmed in evidence that the leak posed no safety hazard whatsoever and there was no sense of urgency as the machine could continue operating for some time without any detrimental effects. [ 41 ] Brendan recalls his father advising words to the effect “we’re going to get the seal fixed tomorrow, so we’ll make it through the night” or “work the night and then carry on”. [18] He did not interpret this to mean he should be doing anything other than carrying on as usual. [ 42 ] Brian Hertz gave similar evidence regarding what he told his son: “Well the seal’s leaking.

We’ll have to get it switched. We’ll get the truck switched out tomorrow. You can keep running it and we’ll go from there.” [19] Mr. Hertz’s view was that nothing was to be done except, perhaps, keep an eye on an external oil gauge which could be viewed easily from a distance from the ground. In fact, he stated all repairs were done by outside agencies which his employees were aware of.

[ 43 ] On the evidence, the Court finds as a fact, that Brendan was not instructed to determine the source of the leak or perform any “maintenance, repair, test or adjustment”, whatsoever. Rather, he was simply to keep the truck running and carry on as usual until the truck was switched out the next day. Unfortunately, according to his own evidence, Brendan, of his own volition on the spur of the moment, decided to hop up on the truck and see if he could ascertain the source of the leaking oil.

He testified that he had never done any such thing before and was well aware of the company policy and his own training, that, in any event, he should have shut the equipment down first. Instead, he wriggled his hand down and under the safeguard at which point his clothing became entangled drawing his hand into the rotating gears. He castigated himself for such an improvident decision and took full responsibility for the consequences. [ 44 ] To summarize, it would not have been reasonably foreseeable [20] that this would occur given that:

a) Brendan had not been instructed to perform any intervention whatsoever regarding the oil leak, but rather simply to just carry on until the next day when the truck would be switched;

b) there was no safety risk or hazard posed respecting the continuation of running the truck;

c) company policy strictly forbade any moving equipment being repaired or maintained unless first shut down;

d) Brendan was a long term employee with no previous history of any incidents and was well trained in the company’s safety policy;

e) Brendan himself had placed warning stickers in each truck concerning shut down of the agitator before any work could be done. [ 45 ] This is not a situation as set out in R v Kelvin Rowlett [21] where the Court rejected the argument that a worker should have known to implement safety procedures before cutting into a live shield wire causing his electrocution. The Court rightly held that he should have been reminded of that before proceeding, especially in light of the potential dire consequences.

In the present case, if Brendan had been instructed to check out the leak or do some repair, or any other intervention, due diligence by the employer may have extended to reminding him to shut down the machinery first. [ 46 ] On balance, the Court is satisfied that the defendant exercised due diligence in taking all reasonable and practicable steps in these circumstances to safely and adequately protect Brendan Hertz. III CONCLUSION [ 47 ] The defendant is found not guilty on counts #2 and #3 of the Information. _____________________ R.D. Jackson, J