Her Majesty the Queen - v. -, 2016 SKPC 2

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 002 Date: 29 January 2016 Information: 24453172 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Saskatchewan Power Corporation Appearing: Buffy L. Rodgers For the Crown Aaron A. Fox, Q.C. For the Accused Decision L. Wiegers , J Introduction [ 1 ] The Shand Power Station (“Shand”) is a coal-fired power plant near Estevan. It is operated by the accused, the Saskatchewan Power Corporation (“SaskPower”). [ 2 ] On 19 April 2013, Anson Weber was employed by SaskPower at Shand as a member of its utility crew. At the time, Mr. Weber

[ 2 ] On 19 April 2013, Anson Weber was employed by SaskPower at Shand as a member of its utility crew. At the time, Mr. Weber was under the direct supervision of Tony Blondeau who was the foreman of the utility crew. That morning, Mr. Blondeau directed Mr. Anson to check on a “tiger torch” that he had in use at a culvert near the utility shop. In doing so, Mr.

Anson suffered serious burns that led to his hospitalization and a subsequent investigation under The Occupational Health and Safety Act,1993 [1] (“the Act”). [ 3 ] Following the investigation, SaskPower was charged with four offences under the Act and its regulations. In brief, the Crown alleges SaskPower caused Mr. Weber’s injuries through inadequate training and supervision, by failing to prevent the development of an explosive atmosphere around the culvert, and by failing in its general duty to ensure his safety. [ 4 ] SaskPower resists the charges.

It claims that it took all reasonable care to prevent the incident through its general operating procedures, the training it provided Mr. Weber and Mr. Blondeau, and the express direction it gave Mr. Blondeau on the morning of the incident. [ 5 ] Before paying specific attention to the charges and the relevant law, I will set out the material facts.

Factual Background The Work Process at Shand [ 6 ] The incident is better understood if one is also aware of the formal work process that was in place at Shand on the date of the incident. [ 7 ] Shand had several work crews and each work crew was required to perform different tasks. The utility crew was responsible for cleaning and basic preventative maintenance. Apart from its foreman, the members of the utility crew were entry level employees. [ 8 ] Management was responsible for assigning tasks to the work crews. At the beginning of the work week, it provided each crew foreman with a detailed work

schedule for the week. The

schedule was developed by a maintenance and operations team in consultation with a production team. The maintenance and operations team determined the week’s tasks and prioritized them. From this information, the production team created the detailed work schedule. [ 9 ] The production team was led by a production manager who was assisted by two or three production support specialists. Each work crew was assigned to a support specialist who liaised with the crew foreman. One of the support specialist’s responsibilities was to ensure the foreman of the crew he or she was responsible for received the work

schedule and a work order for each task mentioned in the work schedule. [ 10 ] As the work

schedule covered all of a work crew’s time for the coming week, it lacked the flexibility to accommodate unexpected situations that required quick attention. In such cases, Shand’s procedure was to require the party that noticed the urgent situation to request a “break” in the

schedule in order to have time to perform the new task. Requests for

schedule breaks were directed to the maintenance and operations team for assessment. If the team agreed a suggested task should be addressed then it would notify the production team and together the two teams would determine how the

schedule should be adjusted. If the

schedule was interrupted for this purpose then the production team would issue a corresponding work order. Although this process involved several individuals it appears work

schedule amendments were made with little delay. [ 11 ] Each morning at about 7:30 a.m., the production team met to discuss the day’s

schedule and consider any

schedule breaks that were authorized by the maintenance and operations team during the previous night. Following the meeting the production team met with each crew foreman to discuss the day’s work. This meeting provided crew foremen with an opportunity to raise concerns. Typically, meetings with the utility crew foreman occurred around 8 a.m.

[ 12 ] After meeting with the production team, crew foremen held “tailboard” meetings with their crews. The purpose of tailboard meetings was to afford crew foremen an opportunity to assign and discuss the day’s work. With each assigned task the foreman handed the worker or workers a copy of the work order that authorized the work. The worker or workers who were handed a work order were required to complete a safety and risk hazard assessment form before commencing the work. I will say more about these forms later.

The Production Meeting of 19 April 2013 [ 13 ] According to schedule, at about 8 a.m. on the morning of the incident, Mr. Blondeau met with members of the production team at their office on the third floor of the plant’s office building. Present from the production team were Marty Mowchenko, the acting production manager, Cory Gellner, a production support specialist who was responsible for the utility crew’s schedule, and another production support specialist named Todd Penner. Mr. Blondeau testified as a Crown witness while Mr. Mowchenko and Mr.

Gellner were called to testify by SaskPower. [ 14 ] From the management side there was nothing new to report to Mr. Blondeau. In Mr. Blondeau’s estimation, however, there was a matter that required special attention. He expressed concern about an ice accumulation in a culvert under the plant service road that led to the cooling tower. He was worried that the ice accumulation would force water onto the service road and prevent travel to and from the cooling tower. It is common ground that passage to and from the cooling tower was essential to the proper functioning of the power plant.

However, SaskPower disputes Mr. Blondeau’s assertion that there was a reasonable risk the water would lap onto the service road and impede travel. It also takes issue with Mr. Blondeau’s account of the response he received from the production manager, Mr. Mowchenko. [ 15 ] Mr. Blondeau claims that when he mentioned the culvert problem everyone present looked out the window at the culvert and agreed he had good cause for his concern. According to Mr. Blondeau, Mr. Mowchenko told him he could look into it. With that, Mr. Blondeau left the office determined to solve the culvert problem. [ 16 ] Mr.

Blondeau acknowledged that most work at Shand was completed under work order and where unexpected issues arose that required a

schedule interruption then there was a procedure for amending the work

schedule and generating a work order related to the new, unanticipated task. Regarding the culvert, however, he did not request a new work order. He reasoned that he had been told he could look into it and since he was going to take on the task himself a work order was not required. In his testimony, he acknowledged that he was not aware of a policy that allowed a foreman to forego seeking a work order because he or she was going to complete the task alone. [ 17 ] Mr. Mowchenko said the meeting lasted about five minutes. During that time, Mr.

Blondeau, “threw out the idea” of doing something about the ice in the culvert. Someone mentioned the possibility of using a water blaster but Mr. Mowchenko decided against pursuing that option because there was a shortage of workers on the utility crew who were qualified to use the water blaster. More importantly, in Mr. Mowchenko’s mind the ice build-up was not a problem. The water level was not unusually high for that time of year and in the six years he had been at Shand the road had never been washed out. At the conclusion of the brief meeting, Mr. Mowchenko told Mr.

Blondeau to not address the problem because it would be a waste of time to do so as nature would soon take its course and melt the ice away. Mr. Blondeau said “okay” and left the office. Mr. Mowchenko expected that was the end of the matter. [ 18 ] Mr. Mowchenko said that when the work

schedule was interrupted for important, unexpected events a work order could be generated without delay. He agreed with the suggestion that not all work at Shand was completed under work order, but he implied that happened rarely and only when the new work was closely connected to work already being carried out under work order. By way of illustration, he described a situation where a crew had a work order to dispose of garbage from garbage bins and upon coming across some garbage strewn on the ground in a nearby area it collected the strewn garbage without a new work order. [ 19 ] Mr.

Gellner’s recollection of the conversation is similar to Mr. Mowchenko’s. He did not recall the precise words used but he was confident Mr. Mowchenko told Mr. Blondeau to leave the culvert alone and stick to his assigned work schedule. He said he never had difficulty communicating with Mr. Blondeau and he anticipated Mr. Blondeau would not take any action toward the culvert following the meeting. [ 20 ] As for the ice accumulation in the culvert, Mr. Gellner testified that he was familiar with the water level and that it did not pose a

hazard. He said it would have taken a very large amount of additional precipitation to impede travel on the road. He has been employed at Shand for 16 years and he has never seen a time when the road to the cooling station was covered by culvert water that prevented vehicle travel along the road. [ 21 ] At this point, it is important to determine what was said at the meeting and whether the ice in the culvert was a realistic threat to impede traffic above it. [ 22 ] No witness recalled the exact words that were used when the culvert was discussed. The evidence of Mr. Mowchenko and Mr.

Gellner regarding the conversation was reasonably specific and remained firm when challenged under cross-examination. I consider the defence witnesses’ account more plausible than Mr. Blondeau’s version. I doubt Mr. Mowchenko would give Mr. Blondeau full discretion to address the problem as he saw fit because the task had not been attempted before at Shand and the reduction of the ice mass in the culvert would necessitate the use of specialized equipment. Under these circumstances, I expect someone in Mr.

Mowchenko’s position would insist on compliance with standard procedures before authorizing the work. [ 23 ] I am also concerned that Mr. Blondeau’s evidence on this point may not be reliable. While testifying, he said his memory of the conversation may have been negatively affected by the passage of time and by a serious medical condition that struck him on a date after the incident occurred. This might explain why he did not recall being disciplined or being ordered to take specific training after the incident.

It was not until he was confronted with documentation on this point that he recalled these occurrences. Undoubtedly, the imposition of discipline would have been an unusual and embarrassing experience for Mr. Blondeau and as a result I find he would have recalled it unless his memory was suspect or he simply did not want to acknowledge it. [ 24 ] I find that Mr. Blondeau was not authorized to address the accumulation of ice in the culvert. He sincerely thought the accumulation of ice represented a serious problem for SaskPower and he disagreed with Mr. Mowchenko’s view of it.

He decided to solve the problem himself without further contact with the production team. [ 25 ] Photographs of the culvert area demonstrate there was a significant build up of water in the ditch and some water had risen onto the road. Mr. Mowchenko and Mr. Gellner testified the water levels at the time were not unusual. Although Mr. Blondeau was sincere in his belief that he was performing work that would benefit his employer, he was the only person who had considered the potential risk and come to that conclusion. In at least 16 years, this threat had never crystallized into a real problem.

I find that despite Mr. Blondeau’s good intentions, it was not a problem that raised a reasonable risk to SaskPower’s operations. The Incident [ 26 ] Mr. Blondeau left the meeting and walked to the utility shop where he held the morning tailboard meeting with his crew. It is not clear whether the culvert was discussed. Mr. Blondeau says it was not discussed, but Mr. Weber recalls some discussion about the culvert. In any event, it is clear that Mr. Blondeau thought he would deal with the culvert himself, however, at some point that morning he enlisted Mr. Weber’s assistance. Mr. Blondeau understood Mr.

Weber had experience with a tiger torch. His belief was confirmed by Mr. Weber who testified he had used a tiger torch on his parents’ farm. [ 27 ] Mr. Blondeau was aware there was a tiger torch in the utility shop, though it was seldom used. For example, Mr. Blondeau had been working at Shand for four years and he had never used it. A tiger torch is a torch that is supported by a long, thin handle. It produces a flame at the torch end once it receives a fuel supply and is lit. In this case, the torch was attached to a propane tank and regulator by a hose that fed the torch. Mr.

Blondeau positioned the propane tank perhaps 10 or 15 feet from the culvert and, after igniting the tiger torch, he placed the lit end against the ice mass in the culvert. Then he placed a tarp around the end of the culvert to trap the heat. As mentioned, Mr. Blondeau initially intended to handle this task himself. He said there was no one else who had reason to be in the vicinity so he left the tiger torch unguarded and returned to his office to complete some unrelated paperwork. [ 28 ] Mr. Blondeau was aware that Mr.

Weber and another utility crew member, Brad Mackenzie, would be travelling to Estevan to drop off a SaskPower truck for maintenance. As the two workers left the utility shop for the drive to Estevan, Mr. Blondeau directed Mr. Weber to ensure the torch was still lit by checking on it when they passed the culvert on the way to Estevan and on the return trip to Shand. He did not provide specific instruction to Mr. Weber on how this should be done though, as indicated, he had formed the correct impression Mr. Weber has some experience with a tiger torch.

[ 29 ] On the drive to Estevan, Mr. Weber checked on the tiger torch and noticed the flame was extinguished, so he lit it. On the way back from Estevan, Mr. Weber again noticed the flame was out. As a result, he repeated the procedure he had used the first time he lit the torch. Initially nothing happened, but moments later a large fireball formed and Mr. Weber was unable to escape the culvert area without injury. He suffered burns to his face, hand, fingers and arm. As a result he was hospitalized for about one week and was off work for four months. He underwent physiotherapy treatments for one month.

Today, he is well; his burns have healed, though an area of skin on his left hand and wrist is slightly discoloured. [ 30 ] The Crown submits the warming blanket that Mr. Blondeau placed over the end of the culvert caused gases to accumulate and thereby created an explosive atmosphere that in turn generated the fireball. No expert evidence was led on this point, however, the theory was not contested and it seems to be the only reasonable conclusion based on the evidence received at trial. The Charges [ 31 ] Following the incident, SaskPower was charged that it did: 1.

Fail to ensure that a worker is trained in all matters that are necessary to protect the health and safety of the worker when the worker is moved from one work activity to another as required by

Section 19 of The Occupational Health and Safety Regulations, 1996 and did thereby cause a serious injury to Anson Weber, contrary to

section 57 of The Occupational Health and Safety Act, 1993 . 2. Fail to ensure that all work at a place of employment is sufficiently and competently supervised as required by

Section 17 of The Occupational Health and Safety Regulations, 1996 and did thereby cause a serious injury to Anson Weber, contrary to

section 57 of The Occupational Health and Safety Act, 1993 . 3. Fail to ensure that all sources or potential sources of ignition are eliminated or controlled where an explosive atmosphere exists or is likely to exist as required by

Section 367 of The Occupational Health and Safety Regulations, 1996 and did thereby cause a serious injury to Anson Weber, contrary to

Section 57 of The Occupational Health and Safety Act, 1993 . 4. Fail to ensure, insofar as is reasonably practicable the health, safety, and welfare at work of all of the employer’s workers as required by

Section 3 of The Occupational Health and Safety Act, 1993 and did thereby cause a serious injury to Anson Weber, contrary to

Section 57 of The Occupational Health and Safety Act, 1993. Liability under the Act [ 32 ] The purpose of the Act is to promote workplace safety and therefore offences created under the Act fall within a class of offences broadly known as public welfare offences. Such offences are quasi-criminal offences that are almost always categorized as strict liability offences. Unlike criminal offences, strict liability offences do not require proof of mens rea as a precondition to a finding of guilt.

Rather, to obtain a conviction the Crown need only prove the actus reus of the offence beyond a reasonable doubt. [ 33 ] If the Crown is successful in establishing the actus reus , then it falls to the accused to avoid conviction by proving on a balance of probabilities it took all reasonable care to avoid the result or that it held a reasonable and honest belief in a set of circumstances that if true would render its acts or omissions innocent. [2] The reasonable care defence may be characterized in different ways.

It is often referred to as the accused’s burden to prove due diligence or sometimes described as the burden to prove he or she was in no way negligent. [3] The defence is codified in

section 62 of the Act: 62. In any proceedings for an offence pursuant to this Act or the regulations consisting of 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 it was not practicable or not reasonably practicable to do more than was actually done to satisfy the duty or requirement, or that there was no better practicable means than was actually used to satisfy the duty or requirement.

[34] Given the present circumstances, it is necessary to consider SaskPower’s legal responsibility for the actions of its supervisor, Mr. Blondeau. Here, it is noteworthy that case law has characterized strict liability offences as offences of primary, not vicarious liability.[4] Yet, the Act imposes vicarious liability on the accused, at

section 61: 61. In a prosecution of an offence pursuant to this Act, any act or neglect on the part of a manager, agent, representative, officer, directoror supervisor of the accused, whether or not the accused is a corporation, is deemed to be the act or neglect of the accused. At first blush,

section 61 seems to be at odds with the court decisions that have categorized strict liability offences as offences of primaryliability. However, similarly worded provisions in statutes that create strict liability offences have been interpreted to mean adesignate’s actions or omissions may be imputed to the employer for the purposes of determining whether the actus reus has been committed, but have no bearing on whether the employee has established the defence of due diligence.[5] I see no reason to assign adifferent meaning to

section 61. [35] At the same time it is important to observe that under the Act the goal of workplace safety is intended to be a responsibilityshared by all workplace actors. To this end, the Act imposes duties on seemingly everyone who is at or could be connected to a work site.[6] Occasionally, Courts refer to the shared responsibility approach as the “belt and braces” approach meaning harm that could becaused through the failure of one workplace actor to discharge his or her duty may be prevented by the acts of another actor withconcurrent responsibility who does meet his or her duty.

Similarly, where both actors fail to discharge their duty, one should not be able to use the negligence of the other as an excuse for his or her negligence.[7] [36] Further, at common law work standard statutes have received broad, generous

interpretations. As an illustration, in Ontario (Ministry of Labour) v Hamilton (City), (ON CA), [2002] OJ No 283 (CA)[8] while interpreting a regulation underOntario’s Occupational Health and Safety Act, the Ontario Court of Appeal provided its view of the required interpretive approach, atparagraph16: [16] The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protectionfor the health and safety of workers.

When interpreting legislation of this kind, it is important to bear in mind certain guiding principles.Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with thepurposes and objectives of the legislative scheme. Narrow or technical

interpretations that would interfere with or frustrate the attainmentof the legislature's public welfare objectives are to be avoided. [37] This broad interpretive approach is evident in the manner certain courts have interpreted the ambit of legislation that is similar tothe Act.

For example, Courts have concluded a provision that expressly prohibits a worker from using specialized equipment without adequate training also implicitly imposes a duty on the worker’s employer to provide adequate training.[9] In another decision, anemployer’s duty to protect workplace employees was interpreted as a duty to protect all employees engaged at the workplace even those who work for another employer.[10] Analysis The Actus Reus [38] In the case at bar, SaskPower agrees that the Crown has proved beyond a reasonable doubt the actus reus of counts 2, 3, and 4.

SaskPower submits that the actus reus of Count 1 has not been proved because the training it provided Mr. Weber was sufficient to givehim notice that he should not have been using the tiger torch or at least should not have been using it without having taken further safetyprecautions. In my view, all of his training is relevant to the issue of due diligence, but is not helpful to SaskPower at this stage of theanalysis. The actus reus of the offence calls for a determination whether he was sufficiently trained for the new activity he wasassigned.

The new activity involved the use of the tiger torch and he had not received any training in the use of that specific tool. Therefore, I conclude the Crown has proved the actus reus of Count 1 as well. The Defence of Reasonable Care

[ 39 ] SaskPower submits it should not be convicted of any charge because it exercised all reasonable care to avoid the occurrence of the incident. Below I will consider the defence in light of each charge, but first I will comment on SaskPower’s safety policies and procedures at Shand because they are relevant to all of the allegations. [ 40 ] In general, the evidence demonstrates that at the material time SaskPower made significant attempts to impress on its employees that safety was a critical part of their work.

Crown and defence witnesses agreed with the general suggestion that safety was important to the employer. A safety-first theme is common in the several paper exhibits filed by the defence. For example, orientation material provided to new employees states that SaskPower strives to make “safety as important as anything we do and a part of everything we do”. Elsewhere the material expresses SaskPower’s ambition that its business can be effectively conducted without causing injury to anyone. [11] [ 41 ] More specifically, SaskPower established a work procedure focussed on avoiding harm to its workers.

At paragraphs 7 through 12 above, I summarized how the work

schedule at Shand was developed, changed and circulated to crew foremen. Here, it is important to provide further detail about this process. [ 42 ] Every work

schedule task was accompanied by a work order that the crew foreman assigned and discussed with workers at the morning tailboard meeting. The aim of the morning tailboard meeting was to discuss what work was to be done, who would do it, and how it would be safely accomplished. The crew foreman led these discussions. Occasionally, managers such as Mr. Mowchenko and Mr. Gellner would attend the tailboard meetings to ensure they were proceeding as intended.

After the tailboard meeting, the worker or workers assigned to a task were required to complete a safety and risk hazard assessment form. [12] This form, as the name suggests, was designed to focus the workers’ attention on possible safety hazards associated with the task. [ 43 ] In completing the safety and risk hazard assessment form, the worker’s first task was to identify the corresponding work order and describe the assigned task and its location. Then the form called on the worker to turn his or her mind to safety measures that must be taken before the work commenced.

The form included a checklist that required the worker to confirm he or she understood the job and question whether the nature of the work activity triggered specific policy and procedures, whether safety equipment would be required, and whether a permit would be required to complete the work.

With regard to the portion of the checklist that referred to permits, the form specifically mentions “hot work” permits. [ 44 ] Shand had a work policy regarding “hot work” meaning work that involved open flame. [13] It provided that the goal of the policy was “to achieve zero (0) preventable fires at Shand power station caused by hot work,” to ensure the health and safety of workers who perform the work, and to prevent property damage. The policy stated that hot work may be performed only by personnel who are trained in the use of the equipment and understand the hazards associated with the work.

The job could not be commenced without a permit authorizing it and the policy delineated several other safety restrictions concerning hot work. The policy exempted certain Shand locations by designating these locations as “authorized areas”.

The utility shop was one of these locations, however, I note the culvert work was performed outside of the utility shop so I conclude the policy would have applied to the tiger torch work performed at the culvert. [ 45 ] The requirements to assign work orders, to hold morning tailboard meetings and to complete safety and risk hazard assessment forms were reduced to writing in SaskPower’s policy and procedures. [14] Although the weight of the evidence suggests these procedures were routinely followed, regarding the culvert work neither a work order nor a hot work permit was obtained or sought. In his evidence, Mr.

Weber initially testified he had completed a safety and risk hazard assessment form but he later stated that he could not be certain. His co-worker, Brad Mackenzie, who was not injured in the incident and whose statement to the file investigator was admitted into evidence by consent of counsel, said that a safety and risk hazard assessment form was not completed for the task. Mr. Blondeau confirmed this in his evidence. There is no record of a form being completed. In all, I conclude that a safety and risk hazard assessment form was not completed. [ 46 ] Although Mr.

Blondeau testified there was some confusion as to whether a work order and the corresponding completion of a safety and risk hazard assessment form was required when he took a job on himself, he did not elaborate further and his evidence on this point was somewhat vague. By the time his cross-examination was complete he had acknowledged he should have sought a work order and a hot work permit. In my view, Mr. Blondeau was familiar with the routine procedure but did not follow it.

[ 47 ] At the time he suffered his injuries, Mr. Weber had been employed by SaskPower for about 10 months and had been working at Shand for two months. Compared to Mr. Blondeau, his knowledge of relevant procedures and processes was limited. To be sure, he would have relied on Mr. Blondeau for direction. I will say more about his training shortly, but at this point it is noteworthy that he was aware the tasks he performed at Shand required him to complete a safety and risk hazard assessment form. Count 1 [ 48 ] Count 1 alleges SaskPower caused Mr.

Weber’s injuries because it failed to ensure he was adequately trained when moving from one work activity to another. With regard to this charge, the Crown’s submission is that it was incumbent on SaskPower to ensure Mr. Weber was trained in the use of the tiger torch. [ 49 ] In reply, SaskPower argues that Mr. Weber’s use of the tiger torch was not reasonably foreseeable and therefore training in the use of the specific tool cannot form an essential part of its duty.

To find otherwise, SaskPower submits, would be to increase the burden on the accused beyond what is intended by common law or statute. [ 50 ] In R v 101009484 Saskatchewan Ltd. 2011 SKPC 31 , 391 Sask R 81, Judge Harradence considered the meaning and significance of foreseeable risk and adopted, at paragraph 48, the following passage from an Alberta decision, R v Lonkar Well Testing Ltd. 2009 ABQB 345 , AJ No. 604: 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. 2(1)(a)(

i) required not only foreseeing and addressing a potential danger so as to ensure the health and safety of workers, but imagining all the bizarre and unforeseeable situations which might create a further danger, then the employer’s liability under this provision would be absolute. This approach would render meaningless the phrase “as far as reasonably practical.” [ 51 ] Based on my findings of fact regarding the production team meeting on the morning of the incident, SaskPower could not have reasonably foreseen Mr. Blondeau’s use of the tiger torch or that he would enlist Mr. Weber to assist him in its use.

The Crown did not press this point in argument, but instead submitted that SaskPower should have foreseen that at some point in time Mr. Weber would be required to use the tiger torch. In support, the Crown relies on the fact the tiger torch was one of the tools inside the utility shop and the safety and risk hazard assessment form made mention of “hot work”. [ 52 ] I disagree. The utility crew typically performed basic maintenance and cleaning tasks and specialized equipment was seldom used by the crew. Mr. Weber was an entry level employee and even the crew’s foreman, Mr.

Blondeau, had not used the tiger torch in his four years of work at Shand. I conclude that Mr. Weber’s use of the tiger torch at some future point in time was not reasonably foreseeable. In addition, I note SaskPower’s work process provided a safeguard in the event Mr. Weber did the unforeseeable and decided to use the tiger torch. The safeguard was not effective in this case because Mr. Blondeau did not seek a work order for the culvert task.

Had he done so, the production team would not have approved the work. [ 53 ] As an aside, if I found that SaskPower had a duty to train employees in these circumstances I am not convinced the workplace would by more safe. If SaskPower was required to train Mr. Weber in the use of the tiger torch simply because it was available in the utility shop and he might be called on to use it some day, then it would likely have to train him in the use of all the tools in the utility shop.

The thought of training an employee to use a wide range of tools that he or she may not have to use until months or years later leaves me with the impression such training would be ineffective because it would be difficult for the employee to retain all this information until each tool is finally used in the workplace. It may be preferable to train workers in the use of a specific tool shortly before they are actually required to use the tool. [ 54 ] As to the training that Mr.

Weber did receive, when he started with SaskPower’s Boundary Dam plant in June, 2012, he was provided with a training orientation and then again in February, 2013 when he transferred to Shand. With each orientation, Mr. Weber received a safety rule book and related material. [ 55 ] The written material Mr. Weber received highlighted safety as a key concern for SaskPower and identified various hazards. On the surface the material appears to be sufficient to instill in the employee a “safety first” mentality, but it was troubling to hear Mr.

Weber testify he had not read most of it even though he knew he was expected to. My concern is not limited to Mr. Weber who did not

follow through as expected, but it extends to SaskPower as well. I think it is reasonable for SaskPower to expect that some of its employees, when faced with a large amount of written material at one time, will not read it all or fully understand what is read. As I observed at paragraph 35 above, workplace safety is a shared responsibility and where one workplace actor fails in his or her assigned tasks it should not remove concurrent responsibility from other workplace actors. Here, the surest means of guaranteeing the required knowledge was effectively conveyed to Mr. Weber was to evaluate the employee.

Yet, it appears little evaluation took place. [ 56 ] Despite this concern, I am satisfied that SaskPower has discharged its burden of proving due diligence regarding the first count on the information. I conclude SaskPower took reasonable care in training Mr. Weber to prevent the incident. Mr. Weber was aware of the purpose of the morning tailboard meetings and that completion of a safety and risk hazard assessment form was required for each task. The written material he received as part of his orientation explained that if he received an assignment he felt was unsafe he could step back from it.

In his testimony, he confirmed that he knew he had this option. [15] As well, as previously stated, SaskPower could not have reasonably expected Mr. Weber to use the tiger torch that morning. In my view, it would be unreasonable to expect more from SaskPower. Count 2 [ 57 ] The second count on the charging information alleges SaskPower failed to ensure Mr. Weber’s safety by not providing him with sufficient and competent supervision. This charge raises the issue of whether Mr. Blondeau was sufficiently trained to supervise Mr. Weber. [ 58 ] In submitting Mr.

Blondeau was not sufficiently trained, the Crown notes that Mr. Blondeau had not received safety training within 24 months of the incident, he was rarely evaluated on the safety training he did receive, and he completed only about one-third of all the safety courses available to employees. Finally, the Crown observes that after the incident occurred SaskPower took measures to have the culvert cleared which suggests it should have had a specific procedure in place for the problem beforehand. [ 59 ] Mr.

Blondeau, who began his career at the accused’s Boundary Dam power plant, had worked for SaskPower for many years before the date of the incident. Mr. Blondeau attended a four day supervisory essentials course in 2011 that promoted a leadership style that would be effective and reduce risk of harm to persons and property. [16] Prior to the incident, Mr. Blondeau had completed 10 training modules related to safety. These courses included the topics of managing safety, occupational health and safety requirements and due diligence, a “why safety” course, workplace inspections, and field exercises. [17] Mr.

Blondeau was cognizant of the work process including the employer’s requirement for tailboard meetings, work orders, the completion of safety and risk hazard assessment forms and work permits. About 12 months before the incident occurred, he attended a meeting at which the hot work policy was reviewed. [18] [ 60 ] Although SaskPower might have provided Mr.

Blondeau with more safety training and provided it more recently, the question is whether SaskPower has proved on a balance of probabilities that it took all reasonable care to train him to be an effective supervisor to avoid the type of incident that injured Mr. Weber. In my view, SaskPower provided Mr. Blondeau with every thing he needed to know to avoid the incident. He was told not to address the culvert task. If he had been told otherwise he would have required a work order that, if approved, would have led to the completion of a safety and risk hazard form and an application for a hot work permit.

All of these measures would have engaged oversight and would have ensured Mr.Blondeau did not take the work on himself. [ 61 ] Mr. Mowchenko testified that since this incident, any concerns related to the culvert are handled by external contractors. Mr. Mowchenko added that the use of these contractors has not been for ice elimination but for mud clearance through the application of water blasting equipment. As a result, it seems the problem of ice accumulation in the culvert remains an issue of little concern to SaskPower.

Count 3 [ 62 ] This count alleges SaskPower failed to ensure all sources or potential sources of ignition were eliminated while an explosive

atmosphere existed around the culvert. In my view, the disposition of this charge follows my conclusions on the earlier counts where Ifound SaskPower had taken reasonable care in providing training and supervision to Mr. Weber. Bearing in mind my conclusionregarding counts 1 and 2, I dismiss this charge. Count 4 [63] The Crown submits that if I find SaskPower guilty of one or more of the preceding counts then that finding effectively provesthis charge which asserts SaskPower failed in its general duty to ensure Mr. Weber’s health and safety.

As I have not found SaskPowerguilty of the preceding charges, I dismiss this charge as well. Conclusion [64] The Crown has established the actus reus of each offence beyond a reasonable doubt. Yet, in each instance SaskPower hasproved on a balance of probabilities that it took all reasonable care to prevent the prohibited act. As a result, I dismiss the four chargesagainst SaskPower. L. Wiegers, J [1] SS 1993, c O-1.1. The Act has since been repealed and replaced by The Saskatchewan Employment Act, SS 2013, c 5-15.1.

The regulations mentioned in this decision remain in force under the replacement Act. [2] R v Sault Ste.

Marie, (SCC), [1978] 2 SCR 1299 (WL) (SCC) paras 60-61. [Sault]. [3] R v Chapin, (SCC), [1979] 2 SCR 121, p 344. [4] Sault, note 2 above, para 72; R v Canadian Dredge and Dock Co., (SCC), [1985] 1 SCR 662, para 12; R vProcrane Inc., [1991] SJ No 596 (QB). [5] R v Safety-Kleen Canada Inc., (ON CA), [1997] OJ 800 (CA); Ontario (Ministry of Labour) v TaggartConstruction Ltd., 2007 ONCJ 660, OJ No 5328 (CJ), para 3. [6] For example, Sections 3 through 8. [7] R v Dofasco 2007 ONCA 769, OJ No 4339 (CA). [8] Leave to Appeal dismissed with Costs at SCC No 29154. [9] Yukon (Director of Occupational Health and Safety) v Yukon Tire Centre et al. 2013 YKTC 92, paras 24-31, YJ No 121. [10] R v Enbridge Gas Distribution 2010 ONSC 2013, para 24, OJ No 1504. [11] Exhibit D-6. [12] Exhibit D-12. [13] Exhibit D-4. [14] Exhibit D-10, point 6; D-11. [15] Mr.

Weber also stated that on an occasion after this incident he came to doubt whether stepping back was a viable option in suchsituations, however, he acknowledged that at the time of the incident he felt that it was but he did not do so. [16] Exhibit D-2. [17] Exhibit D-1.

[18] Exhibit D-5.