Ontario (Ministry of Labour) v. W Roofing Ltd., 2011 ONCJ 494

Citation: Ontario (Ministry of Labour) v. W Roofing Ltd. , 2011 ONCJ 494 IN THE MATTER OF an application for a remedy under s. 24 of the Charter for an infringement of s. 8 of the Charter for charges laid under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 and the Construction Projects Regulation, O. Reg. 213/91 . Between Her Majesty The Queen In Right Of Ontario (Ministry of Labour) Prosecutor/respondent and W Roofing Ltd. Defendant/applicant Ontario Court of Justice Brampton, Ontario Quon J.P. Reasons for Judgment Trial and Application argued: April 27 and 28, 2011. Ruling and Judgment rendered: Sept. 16, 2011.

Counsel: K. Ballweg, counsel for the Ministry of Labour D. Amodeo, legal representative for the defendant, W Roofing Ltd. Charges : (1) failing, as a constructor , to complete an approved registration form before beginning work at a project as prescribed by s. 5(1) of Ont. Reg. 213/91, contrary to s. 23(1) (

a) of the O.H.S.A. (2) failing, as a constructor , to establish written procedures to be followed in the event of an emergency at a project, and failing to ensure these procedures were followed at the project as prescribed by s. 17(1) of Ont. Reg. 213/91, contrary to s. 23(1) (

a) of the O.H.S.A. (3) failing, as a constructor , to ensure that a worker was adequately protected by a method of fall protection at a workplace as prescribed by s. 26.1(2) of Ont. Reg. 213/91, contrary to s. 23(1) (

a) of the O.H.S.A. (4) failing, as an employer , to ensure that a worker was adequately protected by a method of fall protection at a workplace as prescribed by s. 26.1(2) of Ont. Reg. 213/91, contrary to s. 25(1) (

c) of the O.H.S.A. (5) failing, as a constructor , to ensure that workers who may use a fall protection system were adequately trained in its use and given adequate oral and written instructions by a competent person as prescribed by s. 26.2(1) of Ont. Reg. 213/91, contrary to s. 23(1) (

a) of the O.H.S.A. (6) failing, as an employer , to ensure that workers who may use a fall protection system were adequately trained in its use and given adequate oral and written instructions by a competent person as prescribed by s. 26.2(1) of Ont. Reg. 213/91, contrary to s. 25(1) (

c) of the O.H.S.A. (7) failing, as a constructor , to ensure that a work area and route to and from a work area was maintained at all times in a condition that does not endanger workers and is kept free of obstructions at a workplace as prescribed by s. 72 of Ont. Reg. 213/91, contrary to s. 23(1) (

a) of the O.H.S.A. (8) failing, as a constructor , to ensure that a ladder used as a regular means of access between levels of a structure was secured at the top and bottom to prevent movement at a workplace as prescribed by s. 80(

d) of Ont. Reg. 213/91, contrary to s. 23(1) (

a) of the O.H.S.A.

Cases Considered or Referred To: 143471 Canada Inc. v. Quebec (Attorney General), (SCC), [1994] 2 S.C.R. 339 (S.C.C.). B.C. Securities Commission v. Branch, (SCC), [1995] 2 S.C.R. 3 (S.C.C.). Baron v. Canada, (SCC), [1993] 1 S.C.R. 416 (S.C.C.). CanadianOxy Chemicals Ltd. v. Canada (1998), (SCC), 133 C.C.C. (3d) 426 (S.C.C.). Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de l'industrie de la chemise v. Sélection Milton (1994), (SCC), 91 C.C.C. (3d) 315 (S.C.C.). Hunter et al. v. Southam Inc. (1984), (SCC), 14 C.C.C. (3d) 97 (S.C.C.). Irwin Toy Ltd. v.

Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927 (S.C.C.). Kligman v. Minister of National Revenue (appeal by Plastiques Algar (Canada) Ltée) (2004), 239 D.L.R. (4th) 1, 2004 FCA 152(F.C.A.). Nova Scotia (Department of Environment and Labour) v. Nova Scotia (Department of Transportation and Public Works), [2006] N.S.J.No. 379 (QL) (N.S. Prov. Ct.). Ontario (Ministry of Labour) v. Hamilton (City) (2002), (ON CA), 58 O.R. (3d) 37 (O.C.A.), per Weiler, Sharpe andSimmons JJ.A. R. v. Alexander (2003), 2003 BCCA 386 , 176 C.C.C. (3d) 366 (B.C.C.A.). R. v. Andrew, [1992] O.J.

No. 2763 (QL) (O.C.A.), per Morden A.C.J.O., Krever and Griffiths JJ.A. R. v. Bellai Brothers Ltd., unreported, March 12, 1998 (Ont. Ct. (Prov. Div.)), per Sculthorpe J.P. R. v. Bero, (ON CA), [2000] O.J. No. 4199 (QL) (O.C.A.), per Osborne A.C.J.O., Doherty and Charron JJ.A. R. v. Bjellebo (1999), 102 O.T.C. 81, [1999] O.J. No. 965 (QL) (Ont. Ct. (Gen. Div.)), aff’d, (ON CA), 2003 D.T.C.5659, [2003] O.J. No. 3946 (QL) (O.C.A.), leave to appeal dismissed, [2004] S.C.C.A. No. 69 (QL) (S.C.C.).

R. v. Brampton Brick Limited, [2004] O.J. No. 3025 (QL) (O.C.A.) per Weiler, Laskin and Feldman JJ.A. R. v. Brennan Paving and Construction Ltd., (ON CA), [1998] O.J. No. 4855 (QL) (O.C.A.), per Austin, Moldaver andBorins JJ.A. R. v. Broyles (1991), (SCC), 3 S.C.R. 595 at 608, 68 C.C.C. (3d) 308 (S.C.C.). R. v. Buhay, 2003 SCC 30 , [2003] S.C.J. No. 30 (QL) (S.C.C.). R. v. Canada Brick Ltd., [2005] O.J. No. 2978 (QL) (Ont. S.C.J.), per Hill J. R. v. Collins (1987), 33 C.C.C. (3d) 141 (S.C.C.). R. v. Dana Canada Corporation, [2008] O.J. No. 4487 (QL) (O.C.J.), per Harris J. R. v.

Dofasco Inc., 2007 ONCA 769 , [2007] O.J. No. 4339 (QL) (O.C.A.), per Winkler C.J.O., Simmons and MacFarland JJ.A. R. v. Edwards (1996), (SCC), 104 C.C.C. (3d) 136 (S.C.C.). R. v. Fitzpatrick, (SCC), [1995] 4 S.C.R. 154, 102 C.C.C. (3d) 144 (S.C.C.). R. v. Gondor (1981), (YK TC), 62 C.C.C. (2d) 326 (Y.T.C.), per Stuart C.J. R. v. Grant, [2009] 245 C.C.C. (3d.) 1 (S.C.C.). R. v. Herbert, (SCC), [1990] 2 S.C.R. 151 (S.C.C.). R. v. Inco. Ltd., [1998] O.J. No. 2322 (QL) (Ont. Ct. (Prov. Div.)) per Fitzgerald J. R. v. Inco.

Ltd. (2001), (ON CA), 54 O.R. (3d) 495 (O.C.A.), per McMurtry C.J.O., Laskin J.A. and Blair J. (ad hoc). R. v. Jarvis, 2002 SCC 73 , [2002] 3 S.C.R. 757, [2002] S.C.J. No. 76 (QL) (S.C.C.). R. v. Judge of the General Sessions of the Peace for the County of York, Ex parte Corning Glass Works of Canada Ltd., (ON CA), [1971] 3 C.C.C. (2d) 204 (O.C.A.), per Mackay, Kelly and Arnup, JJ.A. R. v. Kurtzman (1991), (ON CA), 4 O.R. (3d) 417 (O.C.A.), per Tarnopolsky, Griffiths and Doherty JJ.A. R. v. La, (SCC), [1997] 2 S.C.R. 680 (S.C.C.). R. v. London Excavators & Trucking Ltd., (ON CA), [1998] O.J.

No. 6437 (QL), 125 C.C.C. (3d) 83, 40 O.R. (3d) 32(O.C.A.), per McKinlay, Catzman and Rosenberg JJ.A.

R. v. M.R.M., (SCC), [1998] 3 S.C.R. 393 (S.C.C.). R. v. Maitland Capital Ltd., [2010] O.J. No. 5744 (QL) (O.C.J.), per Sparrow J. R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233 (S.C.C.). R. v. McKinlay Transport Ltd., (SCC), [1990] 1 S.C.R. 627 (S.C.C.). R. v. N.M. Paterson and Sons Ltd., (SCC), [1980] 2 S.C.R. 679, 55 C.C.C. (2d) 289 (S.C.C.). R. v. Petro-Canada, (ON CA), [2003] O.J. No. 216 (QL) (O.C.A.), per Catzman, Laskin and Goudge JJ.A. R. v. Piko Foods Ltd., [2011] B.C.J. No. 1577 (QL) (B.C. Prov. Ct.). R. v. Prosper, (SCC), [1994] 3 S.C.R. 236 (S.C.C.). R. v.

Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14 (QL) (S.C.C.). R. v. Reid & Deleye Contractors Ltd., 2011 ONCJ 472 , [2011] O.J. No. 3817 (QL) (O.C.J.), per Nicklas J. R. v. Sault Ste. Marie (1978), (SCC), 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353 (S.C.C.). R. v. Sault Ste. Marie (City) Public Utilities Commission, [1989] O.J. No. 2622 (QL), 3 C.O.H.S.C. 1 (Ont. Prov. Ct. (Crim. Div.)), perGreco J. R. v. Scott, (ON CA), [2002] O.J. No. 2180 (QL) (O.C.A.), per Carthy, Doherty and Laskin JJ.A. R. v. Seeley & Arnill Aggregates Ltd. (1993), 9 C.O.H.S.C. 1 (Ont. Ct. (Gen. Div.)), per Logan J. R. v.

Sinclair, 2010 SCC 35 , [2010] S.C.J. No. 35 (QL) (S.C.C.). R. v. Jagrup Singh, 2007 SCC 48 , [2007] S.C.J. No. 48 (QL), 225 C.C.C. (3d) 103 (S.C.C.). R. v. Spanway Building Limited, (unreported) (Ont. Prov. Ct., April 14, 1986, Collins J.) R. v. Stelco Inc., [1989] O.J. No. 3122 (QL) (Ont. Ct. (Prov. Div.)), per Bennett J. R. v. Stillman, (SCC), [1997] S.C.J. No. 34 (QL) (S.C.C.). R. v. Taggart Construction Limited (unreported) (O.C.J., Dec. 17, 2007, Boudeleau J.). R. v. Tecsyn International Inc. (unreported) (Ont. Ct. (Prov. Div.), April 6, 1995, Dunbar J.).

R. v. Tiffin (2005), (ON SC), 136 C.R.R. (2d) 1 (Ont. S.C.J.), per Borkovich J. R. v. Timminco Ltd. (2001), (ON CA), 54 O.R. (3d) 21, [2001] O.J. No. 1443 (QL) (O.C.A.), per Osborne A.C.J.O.,Charron and Feldman JJ.A. R. v. Wholesale Travel Inc. (1991), (SCC), 67 C.C.C. (3d) 193 (S.C.C.). R. v. Wyssen (1992), 10 O.R. (3d) 195 (O.C.A.), per Dubin C.J.O., Finlayson and Blair JJ.A. R. v. Zarinchang, 2010 ONCA 286 , [2010] O.J. No. 1548 (QL) (O.C.A.), per O’Connor A.C.J.O., Armstrong and Epstein JJ.A. R. v. Zuk (2004), 26 C.R. (6th) 171, 2004 ONCJ 246 (O.C.J.), per Lane J.

Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 (S.C.C.). Stelco Inc. v. Canada (Attorney General), (SCC), [1990] 1 S.C.R. 617 (S.C.C.). The Queen v. Amway Corp., (SCC), [1989] 1 S.C.R. 21, [1989] S.C.J. No. 3 (QL) (S.C.C.). Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) (1990), (SCC), 54 C.C.C. (3d) 417 (S.C.C.). Statutes, Regulations and Rules Cited: Canada Evidence Act, R.S.C. 1985, c. C-5, s. 5. Canadian Charter of Rights and Freedoms,

Part 2 of the Constitution Act, 1982,

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11,R.S.C. 1985, App. II, ss. 7, 8, 13, 24, 24(1). Evidence Act, R.S.O. 1990, c. E.23, s. 9(2). Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64(1). Occupational Health and Safety Act, R.S.O. 1990, c. O.1, ss. 1(1), 3, 23(1)(a), 23(2), 25(1)(c), 51(1), 54(1)(c), 54(1)(h), and 66. Construction Projects Regulation (O.H.S.A.), Ont. Reg. 213/91, ss. 1(1), 5(1), 17(1), 26, 26.1(2), 26.2(1), 26.6, 72, 80(d). Authorities or Reference Material Referred to or Considered:

Archibald, T., Jull, K., and Roach, K. Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario: Canada Law Book Inc., 2007). Boucher, Susanne. Understanding

Section 8: Search, Seizure, and the Canadian Constitution (Toronto, Canada: Irwin Law Inc., 2005) Thompson, D., ed., The Concise Oxford Dictionary of Current English, ninth edition (New York: Oxford University Press, 1995), p. 1523. Exhibits Entered: Exhibit "1" - Premise/Project Form and work orders dated March 2, 2009, concerning investigation of critical injury incident at 36 Sprucedale Court, Brampton, prepared by Richard Bottineau, Occupational Health and Safety Inspector (6 pages).

Exhibit " 2 " - Corporate Profile Report produced April 17, 2009, of W Roofing Ltd., indicating it was incorporated on July 31, 2007, and that Natalia Posluszna and Waldemar Serafin are both directors of the corporation (4 pages). Exhibit "3" - Copy of contract dated February 23, 2009, for shingling roof between Doug Densmore and customers at 36 Sprucedale Court, indicating work to be performed by W. Roofing Ltd. (1 page).

Exhibit "4" - copies of 17 Photographs taken on March 2, 2009, related to 36 Sprucedale Court, Brampton, numbered 1 to 17 (9 pages): Photo #1 – photograph taken of company’s logo on trailer that is used to haul shingles to the dump. Photo #2 – photograph taken of front of house at 36 Sprucedale Court, showing caution tape put up by police and the right side of the roof showing where the roof had been stripped of shingles and where plywood had been applied and also of open areas in the roof.

Photo #3 – photograph taken of where the injured worker had fallen and also showing bandages, blood, gauze, a tool belt, and a medical neck brace. Photo #4 – photograph taken of the back of the house at 36 Sprucedale Court, showing the life-line hanging along the side of the house and the presence of a rope grab on the life-line where a worker would tie-off with their lanyard. Photo #5 – photograph taken of the rope grab. Photo #6 – photograph taken of where the injured worker had fallen and showing blood, a medical neck brace, and a workbelt.

Photo #7 – photograph taken of where the injured worker had fallen and also showing where shingles had been removed from the roof and a claw hammer. Photo #8 – photograph taken of the back of the house at 36 Sprucedale Court, showing the hoist (ladder) on the right-hand side of the photograph that is used for hoisting shingles up to the roof and also a ladder on the left-hand side of the photograph that is not used for hoisting shingles up to the roof and also showing that it is not secured at the top of the roof. There is also a life-line with a rope grab attached shown in the photograph.

Photo #9 – photograph taken of the hoist (ladder) and also showing the area where the injured worker fell. Photo #10 – photograph taken of the plywood that would be used to replace rotten wood on the roof and also shows debris and shingles not picked up and plywood not properly stored. Photo #11 – photograph taken of the area covered with blood. Photo #12 – photograph taken of the area covered with blood. Photo #13 – photograph showing that the access ladder was not tied off at the top. Photo #14 – photograph taken of shingles and of other things on the ground.

Photo #15 – photograph taken of the house at 36 Sprucedale Court, Brampton. Photo #16 – photograph taken of the tools and of the workbelt of the injured worker. Photo #17 – photograph taken of the work belt, nails, and of a chalk line tool situated by the nails.

Exhibit "5" - Critical Injury Report (s. 51(1)) prepared by Nils Myhren, Safety Consultant, of Leader Industries, regarding 36 Sprucedale Court, Brampton incident/accident on March 2, 2009, with headings: Location of incident/accident; Background; Description of what happened, Immediate causes; Underlying causes; Other workers at the site at the time of the incident; and How can the accident be prevented from happening again, with attached Certificate of True Copy pursuant to s. 67(1) of O.H.S.A. dated April 27, 2011 (4 pages). 1.

INTRODUCTION [ 1 ] If a roofer falls off a roof, and no one is around to see it, did the roofer actually fall? In other words, if a roofer is found lying on the ground bleeding from a head injury beside a two-storey house and beside a ladder that goes to the roof and where there is also a life-line hanging from the roof along the side of the house, but there was no one there who had actually observed the roofer fall or seen what had happened, had the roofer been on the roof and had he actually fallen from the roof?

On the other hand, despite the absence of someone seeing the fall, could it be reasonably inferred from the severity of the injuries sustained by the roofer that the roofer must have been necessarily on the roof of the house and had fallen off that roof? [ 2 ] This is one of many questions that are at issue in this Occupational, Health and Safety Act prosecution by Ontario’s Ministry of Labour (“M.O.L.”), in which the M.O.L. has charged the corporate defendant, W Roofing Ltd. , as both a “constructor” and as an “employer”, with committing eight offences on March 2, 2009, at a residential house located 36 Sprucedale Court, in the City of Brampton, where roofers employed by the corporate defendant had been engaged in re-shingling the roof of that house.

The eight charges were laid under the the Occupational Health and Safety Act , R.S.O. 1990, c. O.1 (“ O.H.S.A. ”) for contraventions under both the O.H.S.A. and the Construction Projects Regulation, O. Reg. 213/91 . In addition, six of the eight charges relate to the corporate

defendant being a constructor while the remaining two charges relate to it being an employer. [3] And, in defence to six of the charges, the corporate defendant contends that it was not the “constructor” for the project inquestion, but the subcontractor, and that the person who had in fact entered into the contract with the owners of the house where the roofwas being re-shingled is by definition the constructor. [4] However, the principal issue in this matter concerns whether there has been a violation of s. 8 of the Charter when thecorporate defendant was statutorily compelled to produce documents to the M.O.L. supposedly after they were in an adversarialrelationship.

As such, the corporate defendant brought a pre-trial motion for a stay of proceedings as a remedy under s. 24 of the Charterfor that alleged infringement of the corporate defendant’s right against unreasonable search and seizure.

The claim of infringement isbased on the “directing mind” of the corporate defendant, Walter Serafin, feeling pressured to comply with the M.O.L. inspector’srequest to produce documents, which also included the statutorily-compelled production of the Critical Injury Report under s. 51(1) ofthe O.H.S.A., in order to lift the stop-work order issued by the inspector so that the roof re-shingling could be completed to preventdamage to the residential house from the approaching inclement weather. [5] In addition, the corporate defendant is concerned with the fairness of its trial where documentary evidence had been obtained orseized by the M.O.L. inspector, who continued to use the O.H.S.A.’s requirement to produce documents for inspection and theobligation of having to comply with orders of the inspector to provide documents, being used as evidence against the corporatedefendant.

The concern by the corporate defendant is that the inspector did not first obtain a judicially-authorized search warrant for theproduction or seizure of that documentary evidence, considering that the “Rubicon” had already been crossed and the inspector was nolonger seeking information for a valid administrative purpose provided for under the O.H.S.A., but had been gathering evidence of penalliability.

Specifically, the corporate defendant contends an adversarial relationship had commenced between the M.O.L. and thecorporate defendant when the M.O.L. inspector, while interviewing Walter Serafin, who is a director of the corporate defendant, hadread a Charter-based caution to Serafin, thereby revealing that the inspector had reasonable and probable grounds to believe that anoffence had been committed.

Moreover, the corporate defendant contends that no exigent or urgent circumstances existed for theinspector to seize or compel the documents to be produced without a warrant. [6] The corporate defendant also contends that the M.O.L. inspector had directed Serafin to retain a safety consultant, namedLeader Industries, to help prepare the required documents for the M.O.L. so that the stop-work order could be lifted.

As a result of thisM.O.L. direction, the corporate defendant further contends that the safety consultant, who had prepared the requested documents thatincluded the Critical Injury Report, which is required to be prepared and submitted to the M.O.L. within 48 hours of a critical injuryoccurring to a worker, was effectively acting as an agent of the M.O.L. [7] The corporate defendant, as such, relies on R. v. Inco. Ltd. (2001), (ON CA), 54 O.R. (3d) 495 (O.C.A.) andR. v. Jarvis, 2002 SCC 73 , [2002] 3 S.C.R. 757, [2002] S.C.J.

No. 76 (QL) (S.C.C.), to support its argument, and furthercontends there had been a serious breach of the Charter by the M.O.L. in obtaining or seizing the documents in question. [8] In response, the M.O.L. submits that the remedy for a stay of proceedings is an extreme remedy and should only be granted inthe clearest of cases, and that the usual remedy where there is an infringement of s. 8 of the Charter is the exclusion of the evidenceobtained in violation of the Charter, although in this case the M.O.L. submits there has been no infringement.

In addition, the M.O.L.contends that a stay of proceedings would not be appropriate in this case as there is witness testimony and photographic evidence thathad been collected prior to the M.O.L. speaking to Walter Serafin. [9] Furthermore, although the M.O.L. inspector had cautioned Walter Serafin and that reasonable and probable grounds to believethat an offence had been committed may have existed at that point, the M.O.L. contends that the inspector’s predominant purpose at thatjuncture had not been in gathering evidence of penal liability, but had been concerned with the safety of the workers as one worker hadalready been injured, and therefore, had been making inquiries to determine the cause of the accident, and on whether the work wasbeing done in a safe manner, and on whether the workers at the site had been properly trained.

Moreover, the M.O.L. submits thatshackles should not be put on M.O.L. officials who are trying to determine the cause of workplace injuries and who are also checkingthat workplaces, workers, employers, and constructors comply with the standards set out in the O.H.S.A. to ensure that workers areworking in safe environments.

As for indicators of that administrative purpose, the M.O.L. submits that the inspector had been checkingto see that every worker had been trained in fall arrest protection and that there was an Engineer’s Report for the anchors used in thetravel restraint system at that particular site, which consequently shows the inspector’s predominant purpose had been for ensuring thatthe workers had been properly trained in using fall arrest protection equipment and that the workplace would be safe for workers beforehe would permit work on the roof to resume. [10] As for the documents in question, the M.O.L. submits that the inspector only requested documents that should have already beenthere on site and which are required by law to be available for inspection, such as the training records of the workers.

In addition, the

inspector, who had been informed by Walter Serafin that he was the supervisor, explained to Serafin the requirements of what had to be done under the O.H.S.A. after a worker is critically injured. In this case, s. 51(1) of the O.H.S.A. compelled the constructor or employer of the worker who was critically injured to prepare a Critical Injury Report and furnish it to the M.O.L. within 48 hours of the injury occurring.

Moreover, the M.O.L. submits this requirement to produce a document is legislated and required for a valid administrative and remedial purpose of determining the causes of workplace injuries, so that such accidents could be prevented from happening in the future and to also ensure where the accident occurred would be safe for workers.

Furthermore, in response to the question of whether the corporate defendant is the constructor of the project, the M.O.L. contends that the person who had entered into the contract with the owners to re-shingle the roof was in effect acting as the salesperson of the corporate defendant and did not fulfill the role of a constructor that is responsible for health and safety issues at the workplace in question. [ 11 ] The application for a Charter remedy was heard on April 27, 2001, and the trial of the eight charges was conducted and completed on April 27 and April 28, 2011. [ 12 ] After arguments by the M.O.L. and the corporate defendant were heard on both the Charter application and for the trial, the matter was adjourned to September 16, 2011, for the court’s ruling on both the Charter application, and if necessary, judgment on the eight charges.

These therefore are the written reasons for the ruling on the Charter application and for judgment on the eight charges: 2. CHARGES: [ 13 ] The defendant, W Roofing Ltd., has been charged as both an employer and as a constructor for committing the following eight offences under the O.H.S.A. :

(1) W Roofing Ltd., 64-2355 Fifth Line West, Mississauga, Ontario L5K 2M8, on or about 2 nd day of March, 2009, at the City of Brampton, in the Central West Region, in the Province of Ontario, did commit the offence of f ailing, as a constructor, to complete an approved registration form before beginning work at a project, at the project located at 36 Sprucedale Court, in Brampton, Ontario, contrary to section 5(1) of Ontario Regulation 213/91 , contrary to s. 23(1) (

a) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

(2) AND FURTHER THAT, W Roofing Ltd., 64-2355 Fifth Line West, Mississauga, Ontario L5K 2M8, on or about 2 nd day of March, 2009, in the City of Brampton, in the Central West Region, in the Province of Ontario, did commit the offence of failing, as a constructor, to establish written procedures to be followed in the event of an emergency at a project, and failing to ensure these procedures were followed at the located at 36 Sprucedale Court, in Brampton, Ontario, contrary to section 17(1) of Ontario Regulation 213/91 , contrary to s. 23(1) (

a) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

(3) AND FURTHER THAT, W Roofing Ltd., 64-2355 Fifth Line West, Mississauga, Ontario L5K 2M8, on or about 2 nd day of March, 2009, in the City of Brampton, in the Central West Region, in the Province of Ontario, did commit the offence of failing, as a constructor, to ensure that a worker was adequately protected by a method of fall protection as prescribed by

section 26.1(2) of Regulation 213/91, as amended, at a workplace located at 36 Sprucedale Court, in Brampton, Ontario, contrary to section 23(1) (

a) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

(4) AND FURTHER THAT, W Roofing Ltd., 64-2355 Fifth Line West, Mississauga, Ontario L5K 2M8, on or about 2 nd day of March, 2009, in the City of Brampton, in the Central West Region, in the Province of Ontario, did commit the offence of failing, as an employer, to ensure that a worker was adequately protected by a method of fall protection as prescribed by

section 26.1(2) of Regulation 213/91, as amended, at a workplace located at 36 Sprucedale Court, in Brampton, Ontario, contrary to section 25(1) (

c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

(5) AND FURTHER THAT, W Roofing Ltd., 64-2355 Fifth Line West, Mississauga, Ontario L5K 2M8, on or about 2 nd day of March, 2009, in the City of Brampton, in the Central West Region, in the Province of Ontario, did commit the offence of failing, as a constructor, to ensure that workers who may use a fall protection system were adequately trained in its use and given adequate oral and written instructions by a competent person as prescribed by

section 26.2(1) of Regulation 213/91, contrary to section 23(1) (

a) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

(6) AND FURTHER THAT, W Roofing Ltd., 64-2355 Fifth Line West, Mississauga, Ontario L5K 2M8, on or about 2 nd day of March, 2009, in the City of Brampton, in the Central West Region, in the Province of Ontario, did commit the offence of failing, as an employer, to ensure that workers who may use a fall protection system were adequately trained in its use and given adequate oral and written instructions by a competent person as prescribed by

section 26.2(1) of Regulation 213/91, contrary to section 25(1) (

c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

(7) AND FURTHER THAT, W Roofing Ltd., 64-2355 Fifth Line West, Mississauga, Ontario L5K 2M8, on or about 2 nd day of March, 2009, in the City of Brampton, in the Central West Region, in the Province of Ontario, did commit the offence of failing, as a constructor, to ensure that a work area and route to and from a work area was maintained at all times in a condition that does not endanger workers and is kept free of obstructions as prescribed by

section 72 of Regulation 213/91, as amended, at a workplace located at 36 Sprucedale Court, in Brampton, Ontario, contrary to section 23(1) (

a) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

(8) AND FURTHER THAT, W Roofing Ltd., 64-2355 Fifth Line West, Mississauga, Ontario L5K 2M8, on or about 2 nd day of March, 2009, in the City of Brampton, in the Central West Region, in the Province of Ontario, did commit the offence of failing, as a constructor, to ensure that a ladder used as a regular means of access between levels of a structure was secured at the top and bottom to prevent movement as prescribed by

section 80(

d) of Regulation 213/91, as amended, at a workplace located at 36 Sprucedale Court, in Brampton, Ontario, contrary to section 23(1) (

a) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. 3. BACKGROUND [ 14 ] Taras Kopetskyy, a roofer, who was employed by the corporate defendant, W Roofing Ltd., had been critically injured from an apparent fall on March 2, 2009, while working at 36 Sprucedale Court in Brampton, Ontario, where a two-storey house was having its roof re-shingled. Unfortunately, Kopetskyy has not worked since that day. As to what caused the roofer’s injuries, the M.O.L. contends Kopetskyy had been working on the roof without being properly attached to a life-line and then fell off the roof.

However, no one observed Kopetskyy fall from the roof. [ 15 ] After Kopetskyy was injured, emergency services were called immediately to attend 36 Sprucedale Court. When the police arrived, they secured the property and did not allow anyone to disturb the scene until the M.O.L. arrived.

Two inspectors from the M.O.L., Rick Bottineau and Kevin Brown, then arrived at 36 Sprucedale Court. [ 16 ] After conducting an inquiry into the cause of the accident and of the critical injury sustained by the roofer, Inspector Bottineau issued a stop-work order on the project at 36 Sprucedale Court because of concerns over worker safety and training, and also prepared a report entitled the “ Premise/Project Form” (Exhibit “1”) outlining his inquiry into the critical injury, listing deficiencies, requesting documents, and ordering requirements to be fulfilled so the stop-work order could be lifted.

Walter Serafin, who had informed Bottineau that he was the supervisor of the injured roofer, then signed the report prepared by Bottineau. Bottineau then provided a copy of that report to Serafin. In addition, Walter (Waldemar) Serafin was a director of W Roofing Ltd. at the time in question, as indicated in the Corporate Profile Report (see Exhibit “2”). [ 17 ] For Inspector Bottineau’s inquiry into the circumstances surrounding the roofer’s critical injury, he had interviewed people who were at 36 Sprucedale Court when he had arrived.

These included Dawid Kumidaj, a roofer employed by the corporate defendant; Doug Densmore, who had entered into a contract with the owners of the house located 36 Sprucedale Court to re-shingle its roof; and the police officer who was already at the scene when Bottineau arrived. In addition, Bottineau took photographs of the house at 36 Sprucedale Court, of the area where the injured worker had fallen, of items he observed lying on the ground, and of possible contraventions of the O.H.S.A. and of the Construction Projects Regulation.

During his inquiry, Bottineau had also commenced to interview Walter Serafin, who had informed Bottineau that he was the supervisor of the roofers. When Bottineau had heard Serafin state he was the supervisor, Bottineau then decided to read a Charter-based caution to Serafin. After the caution was given, Serafin then decided not to give a statement to Bottineau.

However, Bottineau continued with his inquiry and made a request to Serafin for the Project Registration Form, the Engineer’s Report for the anchors used for the life-line and travel restraint system, and the training documents for the workers working at 36 Sprucedale Court. Serafin was not able to produce or provide these documents to Bottineau at that time. [ 18 ] Inspector Bottineau also informed Walter Serafin of the deficiencies and the requirements to lift the stop-work order.

He also explained about the regulations and the need to prepare and submit a Critical Injury Report within 48 hours, and that the corporate defendant’s employees needed training on the use of fall arrest protection and equipment. Serafin then became concerned about rectifying the deficiencies and to come into compliance so that the stop-work order could be lifted. As a result of Serafin’s concern,

Bottineau then informed Serafin that he could retain a safety consultant to help him fulfill the requirements and to rectify the deficiencies. Serafin then informed Bottineau that he did not know any and asked whether Bottineau could recommend a safety consultant to him.

Bottineau then gave Serafin the name of a safety consultant company called Leader Industries. [ 19 ] Serafin then called Leader Industries and arranged an appointment for the next morning. [ 20 ] In addition, at the time the roofer was injured, the old shingles had already been removed from the roof, but the new shingles had not yet been installed, since the roof was still missing sections where old boards had been removed, but not yet replaced.

As such, because work had stopped on the roof when the roofer was injured and could not be continued until the stop-work order was lifted, the roof remained without shingles and without protection from the elements. [ 21 ] Although Walter Serafin had been concerned with leaving the roof unprotected, the re-shingling of the roof could not be finished until the stop-work order was lifted.

Serafin then left the site at about 9:00 p.m. [ 22 ] On the next day of March 3, 2009, Leader Industries, the safety consultant company, prepared the Critical Injury Report on behalf of the corporate defendant and also provided safety training to the corporate defendant’s employees on the use of ladders and on the use of fall arrest equipment. Serafin also located his training documents at home, which were some of the documents requested by Inspector Bottineau. Serafin then telephoned Bottineau and informed Bottineau about the requested documents being available and the training being completed.

Bottineau then returned to 36 Sprucedale Court and both Serafin and someone from Leader Industries provided the required documents to him. After being satisfied the workers had been trained in the use of fall arrest equipment and that the other deficiencies had been rectified, Bottineau lifted the stop-work order. [ 23 ] However, it was not until months later that the corporate defendant was charged with committing the eight offences under the O.H.S.A. and the Construction Projects Regulation, O. Reg. 213/91 .

These eight charges all relate to the injured worker and the circumstances and events that occurred on March 2, 2009, at 36 Sprucedale Court. Furthermore, this proceeding against the corporate defendant was commenced when an information containing the eight charges had been sworn and laid on November 3, 2009.

A summons was then issued and served on November 4, 2009, on Natalia Posluszna, the Vice-President of the corporate defendant, ordering the corporate defendant to appear in court on December 8, 2009, to answer to the charges. [ 24 ] On December 8, 2009, Posluszna appeared on behalf of the corporate defendant. The matter involving the eight charges was then adjourned until February 9, 2010, in order for the principals of the corporate defendant to review disclosure. On February 9, 2010, Posluszna once again appeared on behalf of the corporate defendant and the matter was then adjourned to April 13, 2010.

On April 13, 2010, the corporate defendant’s legal representative made an appearance and the matter was then set down for a judicial pre-trial conference to be conducted on July 13, 2010. After the judicial pre-trial was conducted, the matter was then adjourned to August 10, 2010, so the matter could be set down for a two-day trial. On August 10, 2010, trial dates were obtained and the trial was scheduled for April 27 and April 28 in 2011, with a return date of March 8, 2011, as a confirmation date.

The trial dates were then confirmed on March 8, 2011. [ 25 ] In addition, Inspector Bottineau did not interview Taras Kopetskyy, the injured worker, until about a week before the trial was to commence. [ 26 ] Furthermore, the application for a remedy under s. 24 of the Charter for an alleged breach of s. 8 of the Charter was then argued in a voir dire held on April 27, 2011.

However, the ruling on the application was reserved and would be decided after the trial was conducted and completed on April 27 and April 28, 2011. [ 27 ] In the voir dire held for the Charter application, only Walter Serafin, a director of the corporate defendant, had testified. And, for the trial, four witnesses testified for the Crown; however, the corporate defendant did not call any witnesses. The Crown witnesses who testified at the trial were:

(1) Dawid Kumidaj, a roofer employed by the corporate defendant and who had been at 36 Sprucedale Court when Taras Kopetskyy had been injured;

(2) Doug Densmore, a sole proprietor, who had entered into a contract with the owners of the house at 36 Sprucedale Court to re-shingle its roof;

(3) Taras Kopetskyy, the injured roofer or worker ; and

(4) Rick Bottineau, the M.O.L. inspector. [ 28 ] After arguments for both the application and for the trial of the eight charges were concluded, the matter was then adjourned to September 16, 2011, for the court’s ruling on the application and judgment on the eight charges. These therefore are the written reasons

for both the ruling and for judgment: (

A) SUMMARY OF TESTIMONY IN CHARTER APPLICATION

(1) Walter Serafin, director of corporate defendant [ 29 ] Walter Serafin testified that he was the supervisor and the owner of the company. He also said he represents the company and acts as a supervisor. Serafin also acknowledged that it was his signature on the bottom of the page above the words “owner-supervisor” on the report that included the work orders, which had been given to him by Inspector Bottineau (see Exhibit “1”). [ 30 ] And, as owner of the company, Serafin said he understood that he had to comply with various regulations.

He also said that order #2 on the work order given to him concerned the training of workers, which had been explained to him by another M.O.L. inspector. He further said there were two inspectors there that day. [ 31 ] Furthermore, Serafin said he generally realizes that he had to have some documents with him at the site. In regards to order #3, he said he had been asked for the training records of the workers employed there, but could not provide them to the inspector, except for his own.

Also, in relation to order #4, he said he had been asked for the Engineering documents for the anchors but none could be given. Furthermore, in response to the workers’ hard hats deficiency listed as order #5, which indicated that there was only one hard hat for three workers, Serafin said he could not recall that incident. He also commented on order #6 and #7 that concerned materials being strewn all over and said that it depended on what side of the building that would have been accessed, since one of the two sides had been free of encumbrances.

In addition, he said there had been some garbage spread on the right side of the house, but the path where Dawid Kumidaj had been carrying the packages of shingles had been free of garbage, and although it may not have been perfect, it was nevertheless good enough to walk there safely and without a problem.

And, in response to order #9 concerning the two ladders not being attached on the bottom he said that one of the ladders had been only used for transporting shingles to the roof, but did not agree that the other ladder that would be used by the men to get to the roof was not properly affixed at the bottom and at the top of the ladder. [ 32 ] Furthermore, on being asked about not having “Registration Form 1000” in relation to order #12, he said he did not have the form.

He also said that he did not have at the site an Engineering Report for the anchors used in the travel restraint system (order #4). [ 33 ] In addition, when asked about the emergency procedures in case of a fall Serafin said they dialed 9-1-1 (order #10). [ 34 ] On the day the worker had been injured, Serafin said he had arrived at the place at 10:00 a.m. and began working around the house. He also said he gone on the roof to remove shingles. He further said the other man had been in charge of making the place secure.

In addition, he said that after the existing shingles on the roof were removed he then passed a few bundles of new shingles onto the roof. Furthermore, he said the other man was installing them.

He also said that he had to exchange a few of the roof’s boards or planks and trim them. [ 35 ] Furthermore, Serafin said he had just started to saw the boards and had been situated about one meter to the right side of the ladder, which is used to transport shingles up to the roof, when he heard a shout and then observed Taras Kopetskyy on the ground about two and one-half meters from the ladder and about four meters from him. He said he then grabbed his telephone and called 9-1-1 and then found a worker named Dawid Kumidaj to report the accident, since Kumidaj’s English was better than his.

Then he said they waited for the arrival of medical help. [ 36 ] Serafin then said that firemen, police, and the Ministry of Labour arrived at their location and Tara Kopetskyy was then taken out and put into an ambulance. [ 37 ] Moreover, Serafin said that Dawid Kumidaj had made a statement prior to him making a statement. Serafin also said the inspector had taken him to the inspector’s car and had read him his rights and told that he was not obligated to bring evidence and was also free to use a lawyer. Serafin said he then decided he had to speak to a lawyer.

However, he did not recall if the inspector had told him that he was going to be charged.

[ 38 ] Serafin also said the inspector had asked about the shingles requiring labels or tags, about equipment, and about safety documents being delivered to him. [ 39 ] In addition, Serafin said the inspector had asked whether all the employees had undergone training. He also said the inspector had informed him that no one would be allowed on the roof except with proper instructions and training.

However, Serafin said he had been previously trained on fall arrest protection. [ 40 ] Serafin also said that before the inspector left the site the inspector had decided that Serafin needed a safety consultant to instruct them. He also said he told the inspector that since his English was modest and had never dealt with such a problem before, or been in touch with a safety consultant, he had asked the inspector if the inspector could recommend someone to use.

He said the inspector then gave him the name of a company called Leader Industries and told him that they would help him complete the required documents. [ 41 ] In addition, Serafin said the inspector then explained to him what had to be done after an accident involving an injury. He also said the inspector gave him certain forms and a particular document. He further said that they had both agreed that Leader Industries would straighten things out. Furthermore, he said the inspector explained and read the safety regulations to him from his notebook where he had also put in comments.

He also said the inspector had first explained to him in the car about workplace safety. In addition, he said he then decided to hire Leader Industries. [ 42 ] Serafin said he then took the name of the safety consultant company referred to him by the inspector and then called and arranged for a meeting the next morning. [ 43 ] In addition, Serafin said the inspector had imposed a stop-work order and then checked to see if Serafin had submitted everything before the inspector departed.

He also said he had been given a report of the whole event and had been informed that the safety consultant would come and unfreeze the stop-work order. [ 44 ] Furthermore, Serafin said the owner of the house had been quite upset because of the late hour. [ 45 ] Moreover, Serafin said a snowstorm was impending so he had been in a hurry to finish the job. However, he said the inspector had told him that the inspector would return the next day and that Serafin would be allowed to resume work.

In addition, he said the inspector had tagged the documents that Serafin would have to prepare and also gave Serafin a telephone number to call or to reach the inspector in the event that something went wrong, so that the inspector would not have to reattend or come out in the rain. [ 46 ] In addition, Serafin said the inspector had given him a list of documents that he had to prepare, but cannot remember if he submitted the missing documents later to the inspector. [ 47 ] Furthermore, Serafin said that when the stop-work order had been issued the roof was still open and that no shingles were on yet and that some of the boards were also not yet in.

He also said that for the evening of the accident the weather forecast had been calling for snow and sleet, so that he had been concerned with finishing the job before the storm hit or there would be significant damage. [ 48 ] Also, Serafin said that when he arrived for work the next day he believes the inspector was already there. He further said the safety consultant had interviewed and asked him questions. In addition, he said he gave the documents being requested to the consultant, although not all the documents were there.

Furthermore, he said that he did not have enough time to prepare all the required documents, since he had arrived home late because the inspector did not leave the construction site until 9:00 p.m. However, he said on the next morning he did take documents to the workplace. [ 49 ] Moreover, when asked what the inspector did the next day, Serafin said he did not want to guess since the incident happened so long ago. He also said he had gathered as many documents as he could to submit to the inspector. Furthermore, he said someone named Nils from Leader Industries, had come to train and instruct them.

In addition, he said that everything, including getting documents and taking the training, had been done to enable them to finish the job and to get the stop-work order lifted. [ 50 ] Serafin also said the training consisted of Nils demonstrating to them on how to use the ropes and the lines. He further said the

instructor had simply demonstrated on a ladder on how to use the equipment and on how to use fall arrest protection. [ 51 ] Furthermore, Serafin said the stop-work order was rescinded after they took the training and instructions from Leader Industries. In addition, he said the safety consultant company had provided the inspector with the rest of the documents. [ 52 ] Moreover, Serafin said he went back to the house on March 3, 2009, to finish the work because the owner was upset. He also said they had completed the instruction and training so they could go back to work.

Moreover, he said his knowledge of the regulations have been immensely enriched. He further said he then hired the safety consultant company to learn more. [ 53 ] Serafin also said he knew many things about what the regulations required and that workers should undergo training or instructions, but he did not foresee an accident. [ 54 ] In addition, Serafin said he did not enter into a contract with the homeowners to repair the roof and that Doug Densmore had been the one who did. Moreover, he said that Densmore does not have any signing authority for his company. (

B) SUMMARY OF TESTIMONY IN TRIAL

(1) Dawid Kumidaj [ 55 ] Dawid Kumidaj testified he now does renovation work, but that on March 2, 2009, he believed he was doing roofing and had been working for W Roofing Ltd., although he thought the event in question had happened in 2008. He also said he had worked for them for about a half of a year and that his supervisor had been Walter Serafin. Furthermore, he said he had gotten the job through an ad in the paper. However, he said he did not have any roofing experience when he started, but did receive basic training.

He also said he shingled both sloped and flat roofs. [ 56 ] Furthermore, Kumidaj said on March 2, 2009, he had been at a two-storey residence situated at 36 Sprucedale Court, Brampton, which was in a regular subdivision. [ 57 ] Kumidaj also said he started work on that day at 10:00 a.m., but had also been there two days earlier removing the first layer of shingles and cleaning up. He also said the shingles that had been ordered had come in that morning and he had helped to unload the shingles and carry the packages of shingles from the front to the back of the house.

He also said that Taras Kopetskyy, Walter Serafin, and himself had been working there. [ 58 ] In addition, Kumidaj said he was on the payroll as an employee and had been paid by cheque by W Roofing Ltd. [ 59 ] Furthermore, Kumidaj said he had been at the front of the house when he had heard a scream. He said Walter Serafin then ran to his location and handed him a mobile phone. He then went to the back of the house and had observed Taras Kopetskyy on the ground, but did not speak to him because he was unconscious.

In addition, he said Kopetskyy was bleeding and it was frantic at that time, but he had called for an ambulance. [ 60 ] However, Kumidaj said he could not remember if Taras Kopetskyy had been wearing clothes, a tool belt, any fall protection, a lanyard attached to safety belt, or any safety equipment. He also said that he had not been asked for his fall protection training card. [ 61 ] Kumidaj also said that Taras Kopetskyy had not been working for very long with W Roofing Ltd.. He thought it had been about two weeks.

He also said he and Kopetskyy had not been working together for awhile because W Roofing Ltd. had several crews. He further said Walter Serafin had different people for different jobs.

[ 62 ] In addition, Kumidaj said that after Taras Kopetskyy fell, neither he nor Walter Serafin had gone up the ladder, nor had he disturbed anything up there. [ 63 ] Furthermore, Kumidaj said he had been still there when the police arrived and had a series of interviews with the police. He also said he gave a statement that day and if he had said in his statement that it had been a cold day, then it must be true. [ 64 ] Kumidaj also said he had been on the roof that day and had worn a harness up there. He also said he wore a tool belt and had used a tool to take shingles off.

However, he said he could not recall if he had fall arrest protection on when he was on the roof that day because he had discretion sometimes not to use any. [ 65 ] Moreover, Kumidaj said that Walter Serafin was a competent person and that Walter had shown him about using a lanyard, a safety belt, a life-line, and how to equipment put together. He also said he understood the information given to him from Walter Serafin. Furthermore, he said he speaks fluent Polish and spoke Polish with Walter.

He also believes that when he spoke to Taras Kopetskyy, he used either English or Polish because Ukrainian is similar to Polish. However, he said he is not a friendly person, so when he worked he did not speak much.

(2) Doug Densmore, the person who entered into a contract with the owners of 36 Sprucedale Court [ 66 ] Doug Densmore testified that he is a sole proprietor and works for himself and his company is known as “Doug Densmore”. In addition, Densmore said W Roofing Ltd. does all his work. [ 67 ] On March 2, 2009, Densmore said they were doing a roof. [ 68 ] When shown a document containing a quote (Exhibit “3”), Densmore acknowledged that it was his signature at the bottom of the page. He also said the document was a contract between himself and the owners of 36 Sprucedale Court, Brampton.

He said the quote indicated that the work would be performed by W Roofing Ltd. and that the materials and labour would be supplied by W Roofing Ltd. In addition, he said that basically he is a salesman and that Walter Serafin’s problem is with the English language, so they complement each other.

He also said that he did not work with any other company nor did he coordinate other contractors with owners. [ 69 ] In addition, Densmore said the quote was for $4800 of which W Roofing Ltd. would get $4000 and he would receive $800. [ 70 ] Furthermore, he said he had been the only contact between the owners and the workers. In addition, he said the cheque issued by the owners had been written to his name, “Doug Densmore”.

He said he would then pay the subcontractors, W Roofing Ltd. [ 71 ] Densmore also said there had been no agreement with Walter Serafin or W Roofing Ltd. that he would be paid a standing commission. He further said the owners had paid him $4800 and GST, after which, he paid Walter Serafin. [ 72 ] In addition, Densmore said he had been at 36 Sprucedale Court on March 2, 2009, to check on the job and had talked to the owners and to the men doing the roof work. He said there were three men there, with two on the roof and with one serving and sending materials to them and also cleaning up.

He also said he left from there between 10 am and noon. In addition, he said he had not been there when Taras Kopetskyy had fallen off the roof. [ 73 ] Moreover, Densmore said he had returned to 36 Sprucedale Court after the accident occurred and that is why he had been able to give a statement.

(3) Taras Kopetskyy, the injured roofer (testified through a Ukrainian language interpreter)

[ 74 ] Taras Kopetskyy testified that he is 35 years old and resides in Mississauga. He also said that prior to April 2009 he had worked as a roofer. In addition, he said that when he emigrated from the Ukraine to Canada in 2006 he had started immediately working as a roofer. [ 75 ] Furthermore, Kopetskyy said he had been working for W Roofing Ltd. in March 2009.

He also said he had been working for W Roofing Ltd. for several months, but only when there was work. [ 76 ] When asked if Walter Serafin had trained him to work as a roofer, Kopetskyy said that he had already known how to work as a roofer because he had worked before as a roofer for another company. He said other people had taught and instructed them. [ 77 ] Furthermore, Kopetskyy said Walter Serafin had asked him if he knew safety procedures and he replied he knew because he had worked at a different company.

However, he said he does not recall if Walter Serafin had asked or not asked him for his training documents, but he does have documents regarding his training, although they were at his home. [ 78 ] Kopetskyy also said he has his own tools and equipment, including safety equipment, but the safety equipment was thrown away when it had been cut off him at the hospital and thrown away.

In addition, he said he had a safety belt and a harness. [ 79 ] However, Kopetskyy said he could not remember how long he had been in the hospital because he was in a coma and that his wife would have to be asked for that information. [ 80 ] In addition, Kopetskyy said he is still not that strong physically and has not been able to work since the fall. Furthermore, he said he still goes to the doctor, but his rehabilitation is finished, which had lasted about a year. However, he said he still does some exercises at home. [ 81 ] Furthermore, Kopetskyy said his supervisor at W Roofing Ltd. was Walter Serafin.

He also said he did not receive instructions from anyone else. In addition, he said he did not know Doug Densmore. [ 82 ] Moreover, Kopetskyy said he did not remember what he had been doing on March 2, 2009, before his injury occurred, nor could he remember anything about what had happened. [ 83 ] In addition, Kopetskyy said he was a member of the roofing union.

(4) Rick Bottineau, M.O.L. Inspector [ 84 ] Rick Bottineau testified that he is employed by the M.O.L. in the Construction and Health and Safety Program, as an inspector and provincial offences officer. He also said that he focuses on construction processes for residential, commercial, and industrial projects, which includes asbestos removal and window cleaning. Furthermore, he is involved in both proactive visits for compliance checks and reactive visits when there is a worker-referred complaint, when there are minor or critical accidents, and when there are fatalities.

He further said he has been doing this for nine and one-half years, since January 11, 2001. [ 85 ] In addition, Bottineau said he is involved in 350 to 400 inspections a year, and for the visits that were reactive he said he has assisted in 21 fatalities, 200 critical injuries and about 300 to 400 minor injuries. He further said that it is his practice to take due diligence into consideration before laying charges for non-compliance against corporations or individuals.

He said he then prepares a brief and forwards it to his director for review, who in turn will pass it to their manager, and finally the brief is given to the legal department. [ 86 ] For the accident in question that had occurred on March 2, 2009, at 36 Sprucedale Court, in Brampton, Bottineau said he had been contacted by his supervisor to attend at the scene. He said he then asked another inspector, Kevin Brown, to attend with him. When they arrived, he said the police were already there. He also said the Peel Regional Police had already secured the scene so that no

one could disturb it. [ 87 ] Bottineau also said the house that was being re-roofed is an occupied residential dwelling and not a new house. [ 88 ] Furthermore, Bottineau said he met a police officer named Phil Yake there. He also said he took photographs. [ 89 ] Moreover, Bottineau explained that there are two kinds of protection: fall arrest and travel restraint. For fall arrest he said a worker has to wear a harness, while for a travel restraint protection the worker only has to wear a safety belt. [ 90 ] In addition, Bottineau said the injured worker had worn a belt, but he did not observe a lanyard there.

Furthermore, he said that one end of a lanyard is usually attached to the "D "ring on the belt worn by the worker while the other end of the lanyard is attached to the rope grab on the life-line. He also said that a worker could not attach to the life-line without a lanyard. Furthermore, he said for the present case the rope grab had been located on the life-line about 8 ½ feet from the roof. [ 91 ] Bottineau also said the height of the roof was above three meters. He said this had been determined with the help of the police officer, who had gone up the ladder and had held one end of the tape measure.

He also said they had measured a height of 17.7 feet from the ground to the roof. [ 92 ] Furthermore, Bottineau explained that a fall arrest system arrests your fall after a fall and that is why a worker has to wear a harness and not just a safety belt or it would cause a serious injury. He further said that a belt is not enough and a harness is required. He also said a shock absorber is needed so that if a worker does fall over the edge they would be slowed down by the shock absorber to prevent the worker from coming to a sudden stop.

However, he did acknowledge that a worker could still be hurt even with fall arrest protection. [ 93 ] In addition, Bottineau said that it was impractical to use a guardrail for protection because it would damage the house, but it could however be used on a flat roof, but not on a pitched roof.

He also described a travel restraint system as protection that is intended to keep someone from going over the edge and permits a worker to travel to the edge but not fall. [ 94 ] Moreover, Bottineau said that a fall arrest system, which can be purchased, usually consists of anchors, a rope grab, a life-line, a harness, and is designed by an engineer. [ 95 ] Furthermore, Bottineau said that there has to be a set of emergency procedures prepared that have to be at the site.

For example, if a worker falls and hangs from his harness, then there has to be a procedure on how to get the worker down, since blood could be cut off to parts of the body or legs, in which amputation or cardiac arrest could occur. In that case, a boon, for example, could be used to get the worker down. He also said these documents have to be on the site. [ 96 ] Bottineau also said that to determine if the workers had been adequately trained he had requested their training records, but they were not originally provided nor provided for all the workers.

However, he said Walter Serafin did eventually provide him with documents as proof of his training, but not for the other workers. He also said he had asked for a “Form 7”, proof of fall arrest training for Dawid Kumidaj and for the injured worker, and the engineering document for the anchors. He also said he had informed Serafin about the requirement of preparing and providing the Report of a Critical Injury to the M.O.L. within 48 hours. [ 97 ] In addition, Bottineau said he had spoken to police and witnesses at the site, which included Dawid Kumidaj and Doug Densmore.

He also said that Densmore had provided him with a copy of his business license and the contract between him and the owners of 36 Sprucedale Court. Furthermore, he said he had taken the witnesses’ statements in his Ministry vehicle because it was warmer and because his computer was in there. [ 98 ] Furthermore, Bottineau said he had commenced an interview with Walter Serafin, but Serafin had declined to be interviewed after Bottineau had cautioned Serafin. As such, he said he did not speak with Serafin.

He also said that when he speaks to a supervisor he will caution them so that they would know that they do not need to speak. Furthermore, he said that when he usually speaks with a supervisor he usually does not have reasonable and probable grounds at that point. He further said that when he goes on a site he gathers

information, collects photos and statements, and does not make a value judgment. [ 99 ] Moreover, Bottineau said he had created a Premise/Project Report (Exhibit “1”). He also said in the report he had listed documents that he had received, the documents that he had requested, the things that were discussed, and the orders he issued.

He further said he had created two documents, one for March 2, 2009, that consisted of six pages and one for March 3, 2009, that consisted of three pages. [ 100 ] In addition, Bottineau said he had issued a stop-work order and had informed Walter Serafin that they could not go back to work on the project until Bottineau was satisfied that the workers had gotten particular training.

He also said there was no engineering for the anchors; not enough hard hats on site; there were materials and shingles on the ground in the egress area; the ladder was not secured at the top or bottom to prevent tipping and not placed on firm footing or a flat surface, but had been resting on shingles; and there were no emergency procedures. [ 101 ] Bottineau also said he had explained the contraventions to Walter Serafin. He also said that Serafin did not understand O.H.S.A. requirements, but that was not unusual in the construction business.

He opined that the best option is always using a safety consultant through a contractors association. [ 102 ] In addition, Bottineau said Serafin had informed him that he was the supervisor, although he does not fall within the definition for a supervisor under the O.H.S.A. because there were not five workers at the site. He also said he had not been concerned with Serafin’s competence, but just his training. He further said that with recent events it was no longer acceptable that training be obtained from just buying a book from the Construction Safety Association and a video to train workers.

In addition, he said presently a test has to be done on site with workers. He also said this structured training process began in 2009. [ 103 ] Furthermore, Bottineau said that a worker has to know the basics, which is Level 1, and how to wear a harness, where to wear a harness, and how to use anchors. He also said that for a worker he asks for a certificate for this training. [ 104 ] Bottineau also said he needed a further inspection to check for compliance. He said he had returned the next day on March 3, 2009, for a re-inspection.

He also said that he had been contacted by Walter Serafin, who informed him that he had contacted a consultant. In addition, he said he told Serafin that he would wait for the documents to arrive and for the training to be done. He also said because of the weather and the roof being open he decided to wait for the training to be completed. [ 105 ] Furthermore, Bottineau said he had returned to the site on March 3, 2009, to get the documents that were ready.

He said the documents that he had received included fall arrest procedure, ladder procedures, rescue plan, and the Critical Injury Report under s. 51(1) of the O.H.S.A. He also said that he received the Critical Injury Report within the 48 hours.

He further said Serafin was very compliant with the orders that were issued. [ 106 ] And, although the Critical Injury Report is a third party document it was still entered as a business record exception and marked as Exhibit “5”. [ 107 ] Moreover, Bottineau said that he had no further contact with Walter Serafin until he served the summons for the charges that were laid against the corporate defendant. [ 108 ] Bottineau also said he had no relationship with the safety consultant company retained by the corporate defendant and it was they who had contacted Bottineau to come and get the document from them.

Also, the document had been given to Bottineau on the site. [ 109 ] Furthermore, Bottineau said he had asked for the documents in question to see if there was due diligence for the company. [ 110 ] Moreover, Bottineau said he had only just recently able to obtain a statement from Taras Kopetskyy. He further said he had interviewed Kopetskyy last week and that Kopetskyy had appeared physically all right, but he did notice that Kopetskyy had some twitching and very little or no memory of the incident in question.

Bottineau also said that Kopetskyy’s wife had informed Bottineau that Kopetskyy did not remember her after the incident.

[ 111 ] In addition, Bottineau said the M.O.L. did not have quotas for laying charges, but has heard that other offices do and that he had also heard that one supervisor requires one charge a month to be laid. [ 112 ] Bottineau also says he has actually only interviewed two supervisors previously and had read Charter-based cautions to these two supervisors, with Walter Serafin being only the second supervisor he has cautioned.

He also said that he does not usually talk to supervisors. [ 113 ] In addition, Bottineau acknowledged that if Walter Serafin had the knowledge, training, and experience in regards to fall arrest protection, as well as training documents, and had given verbal and written training to the workers, then it would have been acceptable. [ 114 ] Bottineau further said there was no issue with Serafin having to take the training for fall arrest protection because Serafin had taken the fall arrest training earlier, as indicated by his training document that had been provided to Bottineau. [ 115 ] Furthermore, in regards to count #1, Bottineau said the Form 1000 had to be filled out before beginning a project and has to be on the site and if it is not produced when requested then the constructor can be charged. [ 116 ] In regards to count #2, Bottineau said that an employer only has to prepare emergency procedures if he is also the constructor. [ 117 ] Moreover, in regards to count #3, Bottineau said that no actual witness saw Taras Kopetskyy fall off the roof, but said that the M.O.L. starts with the premise that someone fell off the roof. [ 118 ] In regards to count #7, Bottineau said that the path was hazardous as shown in photograph #10 because there were shingles at the ladder. [ 119 ] Inspector Bottineau also said he had informed Walter Serafin that he would return the next day because Serafin wanted to get the roof done for the homeowners. [ 120 ] In addition, Bottineau said he has only prepared one search warrant in his career. [ 121 ] Bottineau also said that Doug Densmore had said in his statement that he is basically their salesman and that a salesman is different from being a constructor. 4.

RELEVANT STATUTORY PROVISIONS [ 122 ] Section 54(1)(

c) and (

h) of the O.H.S.A. , R.S.O. 1990, c. O.1, provides that for the purposes of carrying out their duties and powers under the O.H.S.A. and its regulations a M.O.L. inspector may require the production of documents for inspection or examination or may make inquires of any person who is or was in a workplace that are or may be relevant to an inspection, examination, inquiry, or test, without a warrant [ emphasis is mine below ] : 54(1) An inspector may, for the purposes of carrying out his or her duties and powers under this Act and the regulations, … (

c) require the production of any drawings, specifications, licence, document , record or report , and inspect, examine and copy the same;

… (

h) make inquiries of any person who is or was in a workplace either separate and apart from another person or in the presence of any other person that are or may be relevant to an inspection , examination, inquiry or test ; [ 123 ] Under the O.H.S.A. , a corporation convicted of an offence is liable to the penalty prescribed in s. 66(2) which provides for a fine up to a maximum of $500,000 [ emphasis is mine below ] : Penalties 66(1) Every person who contravenes or fails to comply with , (

a) a provision of this Act or the regulations ; (

b) an order or requirement of an inspector or a Director; or (

c) an order of the Minister, is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than twelve months, or to both. Idem 66(2) If a corporation is convicted of an offence under subsection (1), the maximum fine that may be imposed upon the corporation is $500,000 and not as provided therein . Defence

(3) On a prosecution for a failure to comply with, (a) subsection 23(1); (b) clause 25(1)(b), (

c) or (d); or (c) subsection 27(1), it shall be a defence for the accused to prove that every precaution reasonable in the circumstances was taken. Accused liable for acts or neglect of managers, agents, etc.

(4) In a prosecution of an offence under any provision of this Act, any act or neglect on the part of any manager, agent, representative, officer, director or supervisor of the accused, whether a corporation or not, shall be the act or neglect of the accused. [ 124 ] The following are

definitions contained in s. 1(1) of the O.H.S.A. that are relevant in this proceeding:

Definitions 1(1) In this Act, … “competent person” means a person who, (

a) is qualified because of knowledge, training and experience to organize the work and its performance, (

b) is familiar with this act and the regulations that apply to the work, and (

c) has knowledge of any potential or actual danger to health or safety in the workplace; “construction” includes erection, alteration, repair, dismantling, demolition, structural maintenance, painting, land clearing, earth moving, grading, excavating, trenching, digging, boring, drilling, blasting, or concreting, the installation of any machinery or plant, and any work or undertaking in connection with a project but does not include any work or undertaking underground in a mine; “constructor” means a person who undertakes a project for an owner and includes an owner who undertakes all or part of a project by himself or by more than one employer; … “employer” means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services; … “owner” includes a trustee, receiver, mortgagee in possession, tenant, lessee, or occupier of any lands or premises used or to be used as a workplace, and a person who acts for or on behalf of an owner as an agent or delegate; … “prescribed” means prescribed by a regulation made under this act; “project” means a construction project, whether public or private, including, (

a) the construction of a building, bridge, structure, industrial establishment, mining plant, shaft, tunnel, caisson, trench, excavation, highway, railway, street, runway, parking lot, cofferdam, conduit, sewer, watermain, service connection, telegraph, telephone or electrical cable, pipe line, duct or well, or any combination thereof,

(

b) the moving of a building or structure, and (

c) any work or undertaking, or any lands or appurtenances used in connection with construction; … “supervisor” means a person who has charge of a workplace or authority over a worker; … “worker” means a person who performs work or supplies services for monetary compensation but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program; “workplace” means any land, premises, location or thing at, upon, in or near which a worker works; [ 125 ] In addition, the following

definitions under s. 1(1) of the Construction Projects Regulation, O. Reg. 213/91 are relevant in this proceeding: 1(1) In this Regulation, “competent worker”, in relation to specific work, means a worker who, (

a) is qualified because of knowledge, training and experience to perform the work, (

b) is familiar with the Occupational Health and Safety Act and with the provisions of the regulations that apply to the work, and (

c) has knowledge of all potential or actual danger to health or safety in the work; … “fall arrest system” means an assembly of components joined together so that when the assembly is connected to a fixed support, it is capable of arresting a worker’s fall; “fall restricting system” means a type of fall arrest system that has been designed to limit a worker’s fall to a specified distance; … “full body harness” means a device that can arrest an accidental vertical or near vertical fall of a worker and which can guide and distribute the impact forces of the fall by means of leg and shoulder strap supports and an upper dorsal suspension assembly which, after the arrest, will not by itself permit the release or further lowering of the worker; “guardrail system” means an assembly of components joined together to provide a barrier to prevent a worker from falling from the edge of a surface; …

“professional engineer” means a person who is a professional engineer within the meaning of the Professional Engineers Act; … “safety belt” means a belt worn around the waist of a worker and all the fittings for the belt appropriate for the use being made of it; … “safety net” means a safety net that complies with

section 26.8, and is located and supported in such a way that it arrests the fall of a worker who may fall into it without endangering the worker; … “travel restraint system” means an assembly of components capable of restricting a worker’s movement on a work surface and preventing the worker from reaching a location from which he or she could fall; … “work belt” means a belt that has a back support pad and a connecting hook at the front and that is capable of supporting a worker. [ 126 ] Furthermore, s. 3 of the O.H.S.A. provides for the use of alternate methods that are at least equal to the protection that would otherwise be given [ emphasis is mine below ]: Alternative Methods and Materials 3.

An employer, owner or constructor may vary a procedure required by this Regulation or the composition, design, size or arrangement of a material, object, device or thing as required by this Regulation, (

a) if the procedure , composition, design, size or arrangement as varied affords protection for the health and safety of workers that is at least equal to the protection that would otherwise be given ; and (

b) if the employer, owner or constructor gives written notice of the varied procedure, composition, design, size or arrangement to the joint health and safety committee or the health and safety representative, if any, for the work place. [ 127 ] In addition, the duty on a constructor to ensure the measures and procedures prescribed in the O.H.S.A. and it regulations are carried out on the project undertaken by the constructor is set out in s. 23(1) (

a) of the O.H.S.A. [ emphasis is mine below ] : Duties of constructor 23(1) a constructor shall ensure, on a project undertaken by the constructor that , (

a) the measures and procedures prescribed by this act and the regulations are carried out on the project ; (

b) every employer and every worker performing work on the project complies with this act and the regulations; and (

c) the health and safety of workers on the project is protected. [ 128 ] Similarly, the duty on an employer to ensure the measures and procedures prescribed in the O.H.S.A. and it regulations are carried out in the workplace is set out in s. 25(1) (

c) of the O.H.S.A. [ emphasis is mine below ] :

Duties of employers 25(1) An employer shall ensure that , … (

c) the measures and procedures prescribed are carried out in the workplace; 5. ISSUES [ 129 ] The following issues have arisen in this proceeding: (

a) Was there an infringement of s. 8 of the Charter when the corporate defendant was statutorily compelled to produce the Critical Injury Report and to provide the training records of the workers, the employee records or invoices, and the WSIB Form 7 for inspection to the M.O.L.? (

b) If there was an infringement of s. 8 of the Charter then what, if any, should the appropriate remedy be under s. 24 of the Charter? (

c) Is the corporate defendant the “constructor” for the project at 36 Sprucedale Court, Brampton? (

d) Is Doug Densmore the “constructor” for the project at 36 Sprucedale Court, Brampton, since he was the one who entered into a contract with the owners to re-shingle their roof? (

e) Is the corporate defendant an “employer” for the purposes of the O.H.S.A. ? (

f) When the M.O.L. inspector gave a Charter-based caution to the supervisor or the principal of the corporate defendant had the inspector crossed the “Rubicon” at that point so that an adversarial relationship existed between the M.O.L and the corporate defendant? (

g) If the M.O.L and the corporate defendant were in an adversarial relationship, did the M.O.L. inspector need to obtain a search warrant to seize the training records of the workers, the employee records or invoices, the WSIB Form 7, and the Critical Injury Report? (

h) Was the caution that had been given to Walter Serafin, given to him in his personal capacity or as the directing mind of the corporate defendant? (

i) Was there an agency relationship between Leader Industries, the safety consultant company who prepared the Critical Injury

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