Ontario (Ministry of Labour) v. Alpa Lumber Mills, 2016 ONCJ 675

Date: October 11, 2016 CITATION: Ontario (Ministry of Labour) v. Alpa Lumber Mills , 2016 ONCJ 675 IN THE MATTER OF the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 and the Industrial Establishments Regulation, R.R.O. 1990, Reg. 851 . Between Her Majesty The Queen In Right Of Ontario (Ministry of Labour) Prosecutor and Alpa Lumber Mills Inc. o/a Alpa Lumber Mills and Van Kham Sichantha Defendants Ontario Court of Justice Brampton, Ontario Quon J.P. Reasons for Judgment Trial Heard: May 11, 12, and 1 8, 2016. Judgment released: October 11, 2016. Charges :

(1) Alpa Lumber Mills Inc. o/a Alpa Lumber Mills failing as an employer to ensure that the measures and procedures prescribed by s. 26 of O. Reg. 851/90 were carried out at a workplace, contrary to s. 25(1) (

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

(2) Van Kham Sichantha failing as a supervisor to ensure that the measures and procedures prescribed by s. 26 of O. Reg. 851/90 were

carried out at a workplace, contrary to s. 27(1)(

a) of the O.H.S.A. Counsel: C. Glaister, counsel, and A. Lewis, student-at-law, for the Ministry of Labour. C. Foulon, counsel for the defendants, Alpa Lumber Mills Inc. and Van Sichantha. Cases Considered or Referred To: Abarquez v. Ontario, 2009 ONCA 374 , [2009] O.J. No. 1814 (O.C.A.), per Sharpe, Juriansz, and LaForme JJ.A. Lapointe v. Hôpital Le Gardeur, (SCC), [1992] 1 SCR 351 (S.C.C.). Lévis (City) v. Tétreault, 2006 SCC 12 , [2006] S.C.J. No 12 (S.C.C.). Ontario (Ministry of Labour) v. Hamilton (City) (2002), (ON CA), 58 O.R. (3d) 37 (O.C.A.), per Weiler, Sharpe andSimmons JJ.A.

Ontario (Ministry of Labour) v. Hershey Canada Inc., 2006 ONCJ 420 , [2006] O.J. No. 4474 (O.C.J.), per March J. Ontario (Ministry of Labour) v. Linamar Holdings Inc. (c.o.b. Transgear Manufacturing), [2012] O.J. No. 2159 (O.C.J.), per Ziegler J.P. Ontario (Ministry of Labour) v. Magna Seating Inc. (c.o.b. Mississauga Seating Systems), [2015] O.J. No. 139 (O.C.J.), per Quon J.P. Ontario (Ministry of Labour) v. Quinton Steel (Wellington) Ltd., (unreported) November 5, 2015 (O.C.J.) at Guelph, Ontario, perDouglas J. Ontario (Ministry of Labour) v. Quinton Steel (Wellington) Ltd., [2014] O.J.

No. 6294 (O.C.J.), per Stinson J.P. Ontario (Ministry of Labour) v. Sheehan's Truck Centre Inc., 2011 ONCA 645 , [2011] O.J. No. 4510 (O.C.A.), per Rosenberg,Cronk, and Watt JJ.A. R. v. 629728 Ontario Ltd. (c.o.b. Entropex), [2015] O.J. No. 211 (O.C.J.), per Austin J. R. v. Brampton Brick Ltd., [2004] O.J. No. 3025 (O.C.A.), per Weiler, Laskin and Feldman JJ.A. R. v. Canada Brick Ltd., [2005] O.J. No. 2978 (S.C.J.O.), per Hill J.

R. v. Canadian Tire Corp., (ON SC), [2004] O.J. No. 3129 (S.C.J.O.), per Hill J. R. v. Courtaulds Fibres Canada (1992), (ON CJ), 76 C.C.C. (3d) 68 (Ont. Prov. Div.), per Fitzpatrick J. R. v. Dofasco Inc., 2007 ONCA 769 , [2007] O.J. No. 4339 (O.C.A.), per Winkler C.J.O., Simmons and MacFarland JJ.A. R. v. Gonder (1981), (YK TC), 62 C.C.C. (2d) 326 (Y.T.C.), per Stuart C.J. R v. MacMillan Bloedel Ltd., [2002] B.C. J. No. 2083 (B.C.C.A.). R. v. Modern Niagara Toronto Inc., [2003] O.J. No. 3332 (O.C.J.), per Quon J.P. R. v. Ontario Food Terminal Board, 2004 ONCJ 219 , [2004] O.J.

No. 4075, 35 C.C.E.L. (3d) 223 (O.C.J.), per Quon J.P. R. v. Petro-Canada, 2008 ONCJ 558 , [2008] O.J. No. 4396 (S.C.C.). R. v. Petro-Canada (2003), (ON CA), 171 C.C.C. (3d) 354 (O.C.A.), per Catzman, Laskin and Goudge JJ.A. R. v. Pioneer Construction Inc., (ON CA), [2006] O.J. No. 1874 (O.C.A.), per Weiler, Rosenberg, and MacPhersonJJ.A. R. v. Prince Metal Products Ltd., [2011] O.J. No. 6450 (O.C.J.), per Hoffman J. R. v. Rio Algom Ltd. (1988), (ON CA), 66 O.R. (2d) 674, 46 C.C.C. (3d) 242 (O.C.A.) per Howland C.J.O, Goodmanand Grange JJ.A. R. v. Sault Ste.

Marie (1978), (SCC), 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353 (S.C.C.). R. v. Seeley & Arnill Aggregates Ltd., [1993] O.J. No. 443 (Ont. Ct. (Gen. Div.)) per Logan J. R. v. Thomas Fuller and Sons Ltd., [2012] O.J. No. 5590 (O.C.J.), per Paciocco J. R. v. Timminco Ltd. (2001), (ON CA), 54 O.R. (3d) 21, [2001] O.J. No. 1443 (O.C.A.) per Osborne A.C.J.O.,Charron and Feldman JJ.A. R. v. Wyssen (1992), 10 O.R. (3d) 195 (O.C.A.) per Dubin C.J.O., Finlayson, and Blair JJ.A. R. v. XI Technologies Inc., 2013 ABCA 282 , [2013] A.J. No. 805 (A.C.A.). Statutes, Regulations and Rules Cited:

Occupational Health and Safety Act , R.S.O. 1990, c. O.1, ss. 25(1)(

c) and 27(1) (a). Industrial Establishments Regulation ( O.H.S.A. ), R.R.O. 1990, Reg. 851, s. 26 . 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). Libman, R. Libman on Regulatory Offences in Canada, (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., (student edition #1 (2014)). Swaigen J., Regulatory Offences in Canada - Liability & Defences (Scarborough, Canada: Carswell - Thomson Professional Publishing, 1992), p. 81.

WordReference.com: English French Dictionary, online: WordReference.com we bsite <<http://www.wordreference.com/enfr/splinter >> , definition for “splinter”: n. (sliver of wood) nf. (de bois) écharde.

Exhibits Entered: Exhibit "1" - copy of the Corporate Profile Report produced February 19, 2015, at 15:00:26, for Alpa Lumber Mills Inc. , indicating an Ontario corporation number of 948032, a registered office address of 7630 Airport Road, Mississauga, Ontario, L4T 4G6, and indicating an incorporation date of June 27, 1991, and also indicating the corporation’s status as active and the jurisdiction is Ontario (8 pages).

Exhibit " 2 " - copy of the Business Names Report, produced February 19, 2015, at 15:00:35, that indicates the style or business name of Alpa Lumber Mills is registered as a style name for Alpa Lumber Mills Inc. (Ontario corporation number 948032), and indicating B.I.N as 961166188, and with a registration date of October 22, 1996, and expiry date of October 18, 2016 (1 page). Exhibit "3" - copies of 15 photographs taken by MOL Inspector Mark Coulter on May 6, 2014, of Rip Saw #1 and Rip Saw #2 and area surrounding the two machines, at the Alpa Lumber factory, located at 13130 Dufferin St., King City, Ontario.

There are two photographs on each page except for the last page (8 pages): Photo #3320 – colour photograph of the outside east side of Alpa Lumber factory. Photo #3321 – colour photograph of infeed side of Rip Saw #1 with cover down. Photo #3322 – colour photograph of back stop used when stacking wood that shows plywood-like barrier put up between Rip Saw #1 and Rip Saw #2. MOL inspector Mark Coulter drew pink circle around plywood barrier. Injured worker, Ma Phao drew orange circle around plywood barrier and blue circles indicating exhaust for Rip Saw #2.

Photo #3323 – colour photograph of Doug Sadler demonstrating position where the worker sorting wood would have been standing at Rip Saw #2. The injured worker, Ma Phao, had been sorting wood at Rip saw #2 when he had been struck by shard of wood ejected from Rip Saw #1, which is in the background of the photograph and which is directly behind where Doug Sadler had been positioned in the photograph.

Photo #3324 – colour photograph of view looking at outfeed end of Rip Saw #1. Exhaust pipe of Rip Saw #2 can be seen in background of photograph. Photo #3325 – colour photograph of identifying information of manufacturer and model number that is on Rip Saw #1. Photo #3326 – colour photograph showing close-up view of identifying information of manufacturer and model number that is on Rip Saw #1 and which is also shown in photo #3325. Photo #3327 – colour photograph of outfeed end of Rip Saw #1 showing where worker who sorts wood at Rip Saw #1 would stand.

Photo #3328 – colour photograph of view looking south at Rip Saw #1. Photo #3329 – colour photograph of view looking east at infeed area of Rip Saw #1 showing yellow police tape placed around machine. Photo #3330 – colour photograph of “stop-use” tag attached to Rip Saw #1. Photo #3331 – colour photograph of unattached switch on Rip Saw #1. Photo #3332 – colour photograph of close-up view of switch at back of Rip Saw #1. Photo #3333 – colour photograph of damaged light on Rip Saw #1 and also shows yellow police tape.

Photo #3334 – colour photograph of close-up view of damaged light on Rip Saw #1 and also shows yellow police tape that is the same as in photo #3333. Exhibit "4" Copy of three pages of operating manual for Rip Saw model ProfiRip KM 310 manufactured in “2005” by Raimann Holzoptimierung GmbH & Co. KG that had been in possession of Alpa Lumber showing contents of Table 3.2 describing the risks in using the rip saw (3 pages).

Exhibit "5" - copies of 14 photographs taken by MOL Inspector Mark Coulter on May 14, 2014, of Rip Saw #1 and Rip Saw #2 and the area surrounding the two machines at the Alpa Lumber factory, located at 13130 Dufferin St., King City, Ontario. There are two photographs on each page (7 pages): Photo #3405 – colour photograph of view looking south-east at Rip Saw #1 with cover down. Photo #3406 – colour photograph of Doug Sadler showing interior view of Rip Saw #1 view looking south-east at Rip Saw #1 with cover up. Photo #3393 – colour photograph of Rip Saw #1 showing infeed end and opening.

Photo #3394 – colour photograph of view looking east at Rip Saw #1 showing plywood-like barrier at infeed end which had been stated for the purpose minimizing risk of kickback. Photo #3395 – colour photograph of opening in plywood where wood is fed into Rip Saw #1. Photo #3396 – colour photograph of Doug Sadler measuring opening at infeed opening in plywood on Rip Saw #1 and indicating at opening of approximately of 4 ¾ inches. Photo #3397 – colour photograph of tape measure showing approximate height of infeed opening in plywood on Rip Saw #1 of approximately 3 inches.

Photo #3398 – colour photograph of interior view of anti-kickback teeth from infeed end of Rip Saw #1 when cover is up. Photo #3399 – colour photograph of Doug Sadler holding up anti-kickback teeth on inside of Rip Saw #1 at infeed end of Rip Saw #1 when cover is up.

Photo #3400 – colour photograph of close-up view of Doug Sadler’s fingers holding up anti-kickback teeth on inside of Rip Saw #1 at infeed end of Rip Saw #1 when cover is up Photo #3401 – colour photograph of close-up view of Doug Sadler’s fingers holding up anti-kickback teeth on inside of Rip Saw #1 at infeed end of Rip Saw #1 when cover is up Photo #3402 – colour photograph anti-kickback teeth on Rip Saw #1 viewed from behind plywood board on infeed end of Rip Saw #1.

Photo #3403 – colour photograph of broader view of anti-kickback teeth on Rip Saw #1 viewed from behind plywood board on infeed end of Rip Saw #1 when cover is up. Photo #3404– colour photograph of interior view of Rip Saw #1 with cover up showing circular saw blade. Exhibit "6" - copy of e-mail thread between Charles Charron, P. Eng. from HITE Engineering and Mark Coulter (MOL) and Doug Sadler (Alpa Lumber) with top e-mail dated Thursday, May 15, 2014 10:37 AM (2 pages). Exhibit "7" - copy of Report of Findings dated June 13, 2014, authored by expert witness Charles Charron, P.

Eng. (HITE Engineering) (black and white copy) (18 pages). Exhibit "8" - copy of supplementary report from Charles Charron, P. Eng. (HITE Engineering Corporation) dated June 18, 2014, to Doug Sadler, general manager, Alpa Lumber Mills, 13130 Dufferin Street, King, Ontario (3 pages). Exhibit "9" - copy of resume for Charles Charron, P. Eng, called by the defendants as an expert witness (4 pages). Exhibit "10" - copies of three colour photographs taken by Charles Charron, P. Eng. (HITE Engineering), on visit to the Alpa Lumber factory located at 13130 Dufferin St., King City, Ontario, on May 8, 2014 (3 pages):

First Photograph – photograph of inside of Rip Saw #1 with cover up. Second Photograph – photograph of Rip Saw #1 with cover up in foreground and Rip Saw #2 in background. There is no plywood or wood barrier visible between Rip Saw #1 and Rip Saw #2. Photograph taken from outfeed side of Rip Saw #1. Third Photograph – photograph of infeed side of Rip Saw #1 with cover up. Exhibit "11" - copy of aid memoire in colour prepared by expert witness Charles Charron, P.

Eng. (HITE Engineering), which comprises of a schematic of the side view of ProfilRip rip saw model KM 310 at the top of the page and a schematic of the top view of ProfilRip rip saw model KM 310 at the bottom of the page (1 page). Exhibit "12" - copy of close-up colour photograph by Charles Charron, P. Eng. (HITE Engineering), on visit to the Alpa Lumber factory located at 13130 Dufferin St., King City, Ontario, on May 8, 2014, showing top set of anti-kickback fingers on the inside side of Rip Saw #1 at the input side with cover up (1 page).

Exhibit "13" - copy of e-mail sent September 24, 2014 10:24 AM by Charles Charron, P. Eng (HITE Engineering) to Doug Sadler re: Today’s report as promised (1 page). Exhibit "14"- Copy of operating manual for Rip Saw model ProfiRip KM 310 manufactured in “2007” by Raimann Holzoptimierung GmbH & Co. KG received by and downloaded by Charles Charron, P. Eng. (HITE Engineering) (67 pages). Exhibit "15" - copy of Report of Findings dated June 13, 2014, authored by expert witness Charles Charron, P. Eng. (HITE Engineering) (colour copy same as black and white copy entered as Exhibit #7) (18 pages). 1.

INTRODUCTION [ 1 ] In the dawn of a brave new world, technological advances have inevitably made machines safer and more foolproof for workers. To protect and prevent workers from being injured when these machines are being used to process various materials, manufacturers are building and designing them with many safety measures and safeguards.

However, even with the best designed machines that have been built with many protective elements and redundant safety measures, accidents could occur and workers could still be injured by the operation of these supposedly foolproof machines when the manufacturer’s instructions for the proper and safe operation of these machines are not followed or complied with.

Ergo, machines may be built to be foolproof, but humans who use these machines are not themselves infallible. [ 2 ] For this particular Occupational Health And Safety Act prosecution by Ontario’s Ministry of Labour, Ma Phao, a worker at the Alpa Lumber Mills Inc. plant in King City, Ontario was injured on May 6, 2014, at approximately 8:00 a.m., when a one inch diameter shard or stake of wood measuring approximately 18 inches in length had been ejected from a rip saw machine (“Rip Saw #1”) at a high velocity and then pierced Ma Phao’s arm while he had been working nearby at a different rip saw machine.

Ma Phao had been standing approximately 10 feet from the infeed opening of Rip saw #1 where he had been collecting and sorting wood coming out of the output end of Rip Saw #2, and unfortunately in the flight path of the stake of wood that had been ejected from the input end of Rip Saw #1.

However, no type of protective barrier had been in place between the infeed end of Rip Saw #1 and where Ma Phao had been standing at the time of the accident, but one was subsequently put in place after the accident had occurred. [ 3 ] Rip Saw #1 is a machine that had been built by a German manufacturer in 2007 and given the model name of ProfiRip KM 310.

It is also a machine that had been designed and built with internal guards and several layers of protective measures to prevent splinters or shards of wood from escaping the machine during its operation and to also prevent the wood or lumber that is being fed into the machine for processing from being kicked back out by the machine’s saw blades.

As for the possibility of being injured by ejected fragments of wood, none of the witnesses who had worked in the processing plant and who had testified in the trial had ever observed a piece or shard of wood being ejected from any of the rip saw machines in the plant prior to the accident that had occurred on the morning of May 6, 2014, in which Ma Phao had been injured. [ 4 ] After the police and the Ministry of Labour were notified about the workplace accident at the Alpa Lumber plant located at 13130 Dufferin Street in King City, Ontario, a Ministry of Labour inspector, later in the evening, attended the location of the workplace accident and placed a stop-use order on the particular rip saw machine that had ejected the stake of wood.

Consequently, after completing his investigation into the accident, the Ministry of Labour inspector charged both Alpa Lumber Mills Inc. operating as Alpa Lumber Mills (“Alpa Lumber”), as the employer of the injured worker, and Van Kham Sichantha, as the supervisor of the injured worker, for failing to ensure that the measures and procedures prescribed by s. 26 of Ontario Regulation 851/90 were carried out at a workplace, namely in not ensuring that Rip Saw #1 had been guarded or shielded so that the product or material being processed, or waste stock produced by the machine, would not endanger the safety of any worker, which would be in contravention of s. 25(1) (

c) and s. 27(1) (a), respectively, of the Occupational Health and Safety Act , R.S.O. 1990, c.

O.1 (“ OHSA ”). [ 5 ] In defence of their respective charges as employer and supervisor (although the defendant, Van Kham Sichantha, who had been charged in his role as supervisor of the injured worker, did not testify), both defendants, Alpa Lumber and Van Kham Sichantha, argue that they did take all reasonable steps to prevent the event from occurring and to ensure that Rip Saw #1 had been shielded and guarded so as not to endanger the safety of its workers, since the machine had already contained shields and guards inside the machine that would have, or should have, prevented the accident.

Moreover, the defendants submit that there are true accidents which can occur that cannot be satisfactorily explained as to why it had happened or to their specific cause.

The defendants also submit that even Charles Charron, the professional engineer who had examined Rip Saw #1 two days after the accident, had testified that he had been baffled and puzzled with how the accident had occurred and how the stake of wood that had injured the worker could have escaped or been ejected from a machine that had been specifically designed and built with internal guards and shields and anti-kickback teeth or fingers to prevent the kickback of splinters or lumber. [ 6 ] Furthermore, the defendants argue that Rip Saw #1 had been shielded and guarded because it had been manufactured with safety components comprising of an internal splinter guard to stop splinters from escaping from the machine and several levels of anti-kickback protection inside the machine to prevent the lumber being fed into Rip Saw #1 from being kicked back out of the infeed opening of the machine, and as such, the machine’s shields and guards should have prevented the very accident that did occur on May 6, 2014, from happening, as well as being the very purpose why there are those shields and guards inside the machine. [ 7 ] Moreover, in their roles respectively as employer and as supervisor, both defendants contend that the particular hazard or danger of a stake of wood being ejected out of Rip Saw #1 was not reasonably foreseeable, since no one had ever seen a piece or stake of wood ever being ejected from any of the rip saw machines at the plant and because lumber had been continuously fed into the rip saw machines over the last five years without incident, and that the rip saw machines had been designed and built with many safeguards and measures that would have, or should have, prevented slivers or stakes of wood from being ejected from the machine. [ 8 ] The defendants also submit that the expert witness, Charles Charron, who is a professional engineer and who had been qualified as an expert in pre-start health and safety reviews of machines, had testified that Rip Saw #1 had been enclosed with a metal cover and had been designed and built with barriers, shields, and guards inside the machine, and that when the cover was down, then those built-in safety measures and the design of the machine would have prevented stakes of wood from flying out of the machine. [ 9 ] In addition, the defendants contend that the manufacturer of Rip Saw #1 would have been acting negligently if it had indeed put that particular model of rip saw machine on the market, knowing full well that the risk or hazard of a stake of wood being ejected from the machine at a high velocity could happen at any moment when the machine is in operation.

As such, the defendants contend that for their defence they should be able to rely on the numerous safeguards designed and built into Rip Saw #1 by the manufacturer to demonstrate that that they were not acting negligently and to show that they had taken all reasonable steps to properly and effectively guard and shield the machine so that no worker could be injured by wood flying out from the machine. [ 10 ] In addition, both defendants contend, in the alternative, that they had reasonably believed (even though the defendant, Van Kham Sichantha, did not testify at trial) that the rip saw machine, as designed, would prevent a stake of wood from flying out of the machine, but were mistaken, since a stake of wood did fly out of the machine.

In other words, both defendants had reasonably, but mistakenly believed, that the safeguards and preventative measures designed and built into Rip Saw #1 ought to have prevented the accident that had happened on May 6, 2014, from occurring, and that the number of protective measures and safeguards built and designed into the machine would have, or should have, prevented the stake of wood from flying out of the machine.

[ 11 ] Moreover, the defendants submit that they were aware that in order for those built-in protective measures and safeguards in Rip Saw #1 to be effective, then the machine had to be cleaned on regular basis and that the saw blades in the machine had to be also examined on a regular basis and changed if necessary, which had been what the manufacturer had said had to be done.

Hence, in respect to ensuring that the rip saw machines at the plant were operating effectively and properly, the defendants contend that a system had been established at the plant so that both of the manufacturer’s requirements of cleaning the machines regularly and checking and replacing the saw blades regularly were followed and complied with. In particular, the defendants submit that the saw blades in the machines were regularly checked and that the machines were cleaned four times during the day, at the same times each day.

Therefore, the defendants submit that they have proven on a balance of probabilities that they had taken all reasonable care in the circumstances to ensure that Rip Saw #1 had been shielded or guarded so that the product or material being processed, or waste stock produced by the machine, would not endanger the safety of any worker; or alternatively, that they had a reasonable, but mistaken, belief that the guards and shields designed and built into Rip Saw #1 would prevent a stake of wood from being ejected out of the machine.

As such, the defendants contend that they should both be acquitted of their respective charges. [ 12 ] On the other hand, the prosecution submits that they have proven beyond a reasonable doubt that both defendants have breached their respective statutory duties under s. 26 of O. Reg. 851/90 that are imposed on employers and supervisors to ensure that a machine be shielded or guarded so that the product, material being processed, or waste stock would not endanger the safety of any worker.

Specifically, the prosecution submits that both defendants have committed the actus reus of their respective offences beyond a reasonable doubt, as the evidence shows that a worker, Ma Phao, who had been standing 10 feet from the infeed opening of Rip Saw #1, had been injured by a splinter or piece of wood that had been ejected from that machine at a high velocity and that there had been no guard or shield in place between the infeed opening of Rip Saw #1 where the stake of wood had been ejected from and the spot where Ma Phao had been standing, which would have prevented workers from being endangered by a splinter or shard of wood that had been product or material being processed by the machine, and which had been ejected from the machine during its operation, as required under s. 26 of O.

Reg. 851/90. [ 13 ] And, in reply to whether either defendant has proven the defence of due diligence on a balance of probabilities, the prosecution submits that the key issue for this determination is whether in the circumstances a piece of wood escaping or being ejected from the rip saw machine had been a reasonably foreseeable risk or hazard, so as to obligate both defendants to take all reasonable steps to protect workers from injury from that foreseeable risk or hazard.

Moreover, the prosecution submits that the test for reasonable foreseeability is not the foreseeability of how the accident had occurred in the way it did, but whether it had been reasonably foreseeable that a piece of wood could be kicked back or that splinters could be caused by the operation of the machine that could endanger workers. [ 14 ] Ergo, the prosecution contends that the defendants had failed to meet their burden in proving on a balance of probabilities that they had taken all reasonable care in the circumstances to prevent the event from occurring, since the operation of rip saw machines are inherently dangerous and since the defendants had failed to take all reasonable steps in ensuring that the machine was guarded or shielded so as to prevent workers from being endangered by splinters or pieces of wood that could come out or kicked back out of the machine. [ 15 ] And, in reply to the defendants’ contention that they had a reasonable, but mistaken belief, that Rip Saw #1 had been properly and adequately guarded or shielded by the built-in shields or guards and that these internal shield and guards in Rip Saw #1 would have, or should have, prevented the stake of wood from flying out of the machine, the prosecution submits that the defendant’s supposedly mistaken belief that Rip Saw #1 had been adequately shielded and guarded would distort the reasonable foreseeability test, considering that it had been reasonably foreseeable that the machine could produce splinters and fragments of wood, which would be material or product that could be kicked back out of the rip saw machine, and which could then require additional shields to protect workers once the material had been ejected from the machine .

In other words, the prosecution argues that the mistake of fact defence had not been proven by either of the defendants on a balance of probabilities, since the shields and guards inside the machine were designed only to prevent splinters and kicked back material from escaping out of the machine, but not for shielding or protecting workers in the vicinity of Rip Saw #1 from being injured by materials or product once the material or product had been actually ejected from the machine, which is a hazard that had been reasonably foreseeable. [ 16 ] Consequently, for the reasons that follow, the prosecution has proven that Alpa Lumber, as an employer, and Van Kham, as a supervisor, have committed the actus reus of their respective offences beyond a reasonable doubt, and because neither defendant has respectively met their burdens in proving either branch of the defence of due diligence on a balance of probabilities, then both defendants will be convicted of committing their respective charges. [ 17 ] The trial of the two charges had been held over three days: May 11, 12, and 18, of 2016.

After closing submissions, judgment was reserved and adjourned to October 11, 2016. These, therefore, are the written reasons for judgment: 2. THE CHARGES

[ 18 ] By a

Part III information that was sworn on April 15, 2015, Alpa Lumber Mills Inc., operating as Alpa Lumber Mills, was charged in count #1, as an employer within the meaning of the OHSA , for failing to ensure that the measures and procedures prescribed under s. 26 of the Industrial Establishments Regulation , R.R.O. 1990, Reg. 851 (“O. Reg. 851/90”), were carried out at a workplace, contrary to s. 25(1) (

c) of the OHSA, namely that it had failed to ensure that a machine had been shielded or guarded so that the product, material being processed, or waste stock, would not endanger the safety of any worker: Alpa Lumber Mills Inc. o/a Alpa Lumber Mills 7630 Airport Road, Mississauga, Ontario, L4T 4G6, on or about 6 th day of May, 2014, at the Township of King, in the Central East Region of the Province of Ontario, did commit the offence of failing, as an employer, to ensure that the measures and procedures prescribed by

section 26 of Ontario Regulation 851/90, as amended, were carried out at a workplace located at 13130 Dufferin Street, King City, Ontario, contrary to s. 25(1) (

c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 , as amended. [ 19 ] Additionally, in the same information, Van Kham Sichantha was charged in count #2, as a supervisor within the meaning of the OHSA , for failing to ensure that the measures and procedures prescribed under s. 26 of O. Reg. 851/90 were carried out at a workplace, contrary to s. 27(1) (

a) of the OHSA, namely that he had failed to ensure that a machine had been shielded or guarded so that the product, material being processed, or waste stock, would not endanger the safety of any worker: Van Kham Sichantha [municipal address removed for privacy], Newmarket, Ontario, L7B 1K5 on or about 6 th day of May, 2014, at the Township of King, in the Central East Region of the Province of Ontario, did commit the offence of failing, as a supervisor, to ensure that the measures and procedures prescribed by

section 26 of Ontario Regulation 851/90, as amended, were carried out at a workplace located at 13130 Dufferin Street, King City, Ontario, contrary to s. 27(1) (

a) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 , as amended. 3. BACKGROUND [ 20 ] Prior to being injured, 66 year-old Ma Phao had worked for Alpa Lumber and its predecessor company for 34 years. He had been injured on May 6, 2014, at approximately 8:00 a.m. when a shard or a piece of wood had been ejected from a rip saw machine, which is a machine used to cut lengths of wood or lumber into smaller pieces or widths of lumber.

A piece of lumber, usually eight feet in length, is fed into one end of the rip saw machine by a worker and then it comes out at the other end of the machine after being cut or processed into smaller widths of wood. [ 21 ] Ma Phao had been injured when a shard or stake of wood with an one inch diameter and measuring about 18 inches in length had been ejected out of the infeed opening of Rip Saw #1 at a high velocity, and then flew in the air for about 10 feet and had then pierced through three layers of clothing worn by Ma Phao, and then entered Ma Phao’s left forearm just below his elbow.

At the time, Ma Phao had been standing about 10 feet from the infeed opening of Rip Saw #1 where he had been collecting and sorting lumber coming out of the outfeed end of at a different rip saw machine, referred to as Rip Saw #2. [ 22 ] Ma Phao was then taken to the hospital in an ambulance, where he had to undergo surgery to remove the stake of wood from his arm. No one from Alpa Lumber visited Ma Phao during his two-day stay at the hospital. Despite his 34 years of loyal service to the

company, Ma Phao said he felt that he had been abandoned by his employer. He also felt they had left him there like a dog or cat. Moreover, he has not returned to work with Alpa Lumber, although he has been offered modified work, and is now suing Alpa Lumber for damages for his injury.

He also said that as a consequence of the May 6 accident he still presently feels pain if he moves his head a certain way; that he pulled a nerve from left to right; that he takes medication everyday; that he has difficulty breathing; that when he tries to speak he does not produce enough voice; and that he does not write like he used to and cannot sign his signature like he used to before. [ 23 ] On the day of the accident, Rip Saw #1 and Rip Saw #2 had all been positioned and lined up along the same row, back to back, and without any barriers or shields between the two machines, as no one there had any expectation that shards or stakes of wood could be ejected from any of the rip saw machines at the plant, which could endanger any workers in the vicinity of the rip saw machines.

Specifically, the infeed end of Rip Saw #1 was virtually in line with the output end of Rip Saw #2 and the distance between them was approximately 18 to 20 feet.

In addition, none of the workers who had testified at trial had ever observed a splinter or stake of wood being ejected out of the infeed opening of any rip saw machine at the Alpa Lumber plant prior to it occurring on May 6, 2014. [ 24 ] Furthermore, the actual cutting of the lumber or wood product by saw blades in Rip Saw #1 is done inside the machine, which is a machine that is virtually enclosed and only has openings at the infeed end and outfeed end of the machine when the machine is operating or cutting lumber that is fed into the machine.

Specifically, the saw blades are completely covered and contained inside the machine. Rip Saw #1 is also built with shields, guards, and measures inside the machine that prevents splinters or shards of wood from lumber that is being cut or processed from also escaping out of the machine, or from being kicked back out by the machine’s saw blades, or ejected from the input end of the machine where the piece of lumber or wood is being fed into the machine.

Rip Saw #1 is also attached to a central dust collecting system by a duct placed at the top of the machine, which vacuums the saw dust and wood chips out of the machine that is produced from its operation. This is to prevent saw dust or wood chips accumulating inside the machine, which could affect the proper and safe operation of the machine. [ 25 ] In addition, a designated worker cleans the inside and outside of the rip saw machines in the plant four times during a workday by blowing air to remove the saw dust and wood chips that accumulates inside the machine.

The worker also checks and replaces the saw blades of the machine when it is necessary. This is done at the same time of the cleaning of the rip saw machines while the cover of the rip saw machines are raised. This cleaning and checking of the saw blades is done on the rip saw machines at 6:00 a.m., an hour before the other workers arrive; at the morning break held at 9:00 a.m.; at the lunch break, and at the afternoon break held at 1:45 p.m. [ 26 ] Vonusoth Sichantha had been the worker assigned the job of doing this cleaning and checking of the saw blades on the rip saw machines every day, four times a day.

He is also the brother of the defendant, Van Kham Sichantha. Vonusoth Sichantha had also testified that on May 6, 2014, which is the day of the accident, he had cleaned Rip Saw #1, had checked the machine’s saw blades, and blew sawdust and wood chips from the guards inside the machine before the accident occurred at approximately 8:00 a.m. He also said that his duties involved opening the rip saw machines and cleaning and blowing everything out, including blowing the chain, guard, and rollers, to remove any dust.

He also said he makes sure that everything is moving well and looks at the guard to see that it is moving well. [ 27 ] Moreover, after the accident, Charles Charron, P. Eng., an expert on pre-start health and safety reviews of industrial machines had been hired to examine the machine and to determine if the machine could be operated without endangering any worker. Charron had started his assessment and examination of Rip Saw #1 on May 8, 2014, two days after the injury to Ma Phao had occurred.

Charron had to also obtain a 2007 operating manual for Rip Saw #1 from the manufacturer since Rip Saw #1 had been manufactured in 2007 and there had only been in the Alpa Lumber plant an operating manual for the 2005 model of the same type of rip saw machine that Rip Saw #1 had been. After his assessment and examination of Rip Saw #1, he had instructed the management of Alpa Lumber to replace a broken anti-kickback tooth or finger on the output roller unit and to complete other remedial fixes to the machine which were not related to the creation of splinters or shards of wood or the kickback of material.

These other remedial fixes involved repairing the electro- mechanical component used to interlock and latch the opening cowl or hood over the work

section of Rip Saw #1 and securing and remounting the indicator light on the outside of the machine that had been hanging by a wire, which is a light that informs the operator when it is safe to open the hood of the machine. [ 28 ] Charron also noted at page 12 of his “Report of Findings” dated June 13, 2014 (Exhibit #15) that two or three fingers in the second set of anti-kickback fingers did not return to their original position until the adjacent finger was lifted and released or the element itself was released.

However, Charron indicated that he suspected that these fingers would have all dropped independently with the machine’s vibration when the machine was in operation. [ 29 ] After Alpa Lumber had those repairs and remedial fixes completed to Rip Saw #1, Charron determined and reported in writing to the management of Alpa Lumber that the machine did not pose any danger to any worker.

But before the written report had been completed by Charron, Charron had verbally informed MOL Inspector Coulter that the assessment and remedial actions had been completed to Rip Saw #1 and that the machine would not likely endanger the workers. MOL Inspector Coulter then lifted the stop-use order on Rip Saw #1 on May 14, 2014.

[ 30 ] However, although Charron’s mandate in his assessment and review of Rip Saw #1 had not been to determine the cause of the accident, Charron did testify at trial when questioned by the Court, that he had been unable to determine why the stake of wood that injured Ma Phao had been ejected out of the rip-saw machine when the machine had been manufactured with redundant measures of anti- kickback and anti-splinter protection. [ 31 ] Therefore, despite four separate levels of anti-kickback and anti-splinter measures or fail-safe protection which included a toothed conveyor belt, pressure rollers and filler plates, anti-kickback teeth or fingers, and a splinter guard built by the manufacturer into Rip Saw #1, a piece or stake of wood had still been able to escape from the infeed opening of the machine at a high velocity and injure a worker who had been standing approximately 10 feet away from the machine. (

a) Eight Witnesses Testified In The Trial [ 32 ] For the trial, eight witnesses testified. There were five witnesses for the Crown and three witnesses for the defence. [ 33 ] For the Crown, their five witnesses were:

(1) Mark Coulter, the M.O.L. inspector;

(2) Anthony Coulter, an Alpa Lumber worker who put strapping on and stacking lumber for rip saw #2;

(3) Ma Phao, the Alpa Lumber worker who had been injured by a piece of wood shot out from rip saw #1, testified through a Cambodian language interpreter;

(4) Manulido Gonzales, an Alpa Lumber worker who was feeding lumber into Rip Saw #1, had testified through a Tagalog language interpreter; and

(5) San Kim Loung, an Alpa Lumber worker who was gathering lumber after it had been cut on Rip Saw #1, had testified through a Vietnamese language interpreter. [ 34 ] For the defence, their three witnesses were:

(1) Charles Charron, an expert witness in the area of pre-start and health review for machines used in industrial establishments;

(2) Vonusoth Sichantha, the Alpa Lumber worker who cleaned the lumber saws and rip saw machines before the shift commenced and three other times during the shift ; and

(3) Daniel Sperduti, the operations manager for Alpa Lumber . (

b) Did Anyone See The Shard Or Stake Of Wood Being Ejected Out Of Rip Saw #1 On The Morning Of May 6, 2014? [ 35 ] Manulido Gonzales testified that he had been feeding lumber into Rip Saw #1 just before Ma Phao had been injured. Gonzales also said that Ma Phao had been standing behind him and sorting wood after it had been cut on Rip Saw #2.

In addition, Gonzales said that after he had heard Rip Saw #1 make the strange noise that sounded like “gluck, gluck, gluck”, he said he had observed a piece of wood being ejected from the infeed opening of Rip Saw #1 and fly pass him towards Rip Saw #2. [ 36 ] However, none of the other workers who had testified at trial had said that they had observed a piece of wood being ejected from the infeed opening of a rip saw at the Alpa Lumber factory on the morning of May 6, 2014. (

c) How The Worker Had Been Injured In The Workplace [ 37 ] At about 8:00 a.m. on May 6, 2014, workers had already been working at the rip saw machines in the Alpa Lumber wood processing plant for about an hour. Their day had started at 7:00 a.m. Three workers were working at Rip Saw #2. Anthony Coulter, the injured worker, Ma Phao, and another worker, which no one could remember or name. Anthony Coulter had been strapping and stacking lumber while another worker had been feeding pieces of lumber to be cut into Rip Saw #2.

Ma Phao had been picking up and sorting lumber at the outfeed side of Rip Saw #2 and had been standing between Rip Saw #1 and Rip Saw #2, approximately 10 to 14 feet from the infeed opening of Rip Saw #1. Ma Phao specifically said he had been standing about 10 feet away from the infeed opening of Rip Saw #1. [ 38 ] Three people were also working at Rip Saw #1. Sanh Kim Luong, Manulido Gonzales, and another worker were working at Rip Saw #1.

Manulido Gonzales had been the worker feeding wood or lumber to be cut into Rip Saw #1, while Sanh Kim Luong had been collecting and sorting the lumber that had been cut at Rip Saw #1. The third worker at Rip Saw #1 was not named or identified by anyone in their testimony.

[ 39 ] The two rip saw machines were also set up and positioned in the Alpa Lumber plant so that they were in line with each other, where the outfeed end of Rip Saw #2 was practically along the same line or axis as the infeed end of Rip Saw #1. At the moment that Ma Phao had been injured, there had been no sort of barrier between the outfeed end of Rip Saw #2 and the infeed end of Rip Saw #1. The infeed end of a rip saw machine is where a worker would feed a piece of lumber into the machine for it to be cut into smaller widths or pieces of lumber.

The outfeed end would be where the cut lumber or wood would come out of the rip saw machine. A worker would then collect the cut or processed lumber and then stack and sort the cut lumber. [ 40 ] The distance between the infeed opening of Rip Saw #1 and the outfeed opening of Rip Saw #2 is approximately 18 to 20 feet apart. Ma Phao said he had been standing about 10 feet from the infeed opening of Rip Saw #1 when he was injured.

He also said he had been had been standing between Rip Saw #1 and Rip Saw #2 and collecting and sorting lumber that measured 1” x 2” x 8 feet that had been coming out of the outfeed end of Rip Saw #2. [ 41 ] While Ma Phao had been collecting and sorting the cut lumber at the output end of Rip Saw #2, he said he suddenly felt like he had been hit on his head and then felt a pain in his arm. When he looked at his left arm, he noticed that a shard of wood had been impaled into his arm just below his left elbow.

Ma Phao described the length of the shard or stake of wood, as being as long as the distance between his elbow to the tip of his to his outstretched fingers. In describing the thickness of the stake of wood, Ma Phao described it as the thickness that the tips of his index finger and his middle finger held closely together and pointing in a straight line would be. [ 42 ] In addition, Ma Phao said he had been wearing three layers of clothing at the time he was struck by the shard of wood.

But more important, the shard of wood had been ejected from Rip Saw #1 with such velocity or force that it had been able to penetrate three layers of clothing and the arm of Ma Phao. [ 43 ] And, just before the shard of wood had been ejected from Rip Saw #1 and entered the arm of Ma Phao, Anthony Coulter, who had been strapping and stacking lumber at the side of Rip Saw #2, said he had heard a funny sound coming from Rip Saw #1, which he described as a “crunching noise”, just before he saw Ma Phao holding his arm that had a piece of wood in his arm.

Ma Phao had also similarly described Rip Saw #1 making sounds just before the shard of wood came out of Rip Saw #1. [ 44 ] Furthermore, except for Manulido Gonzales, who had been the worker feeding the lumber into the infeed end of Rip Saw #1, none of the other workers working at Rip Saw #1 and Rip Saw #2 had actually seen the stake of wood ejected from Rip Saw #1. In Gonzales’ observation of the event, he said he had heard a noise when he had fed wood into the machine and then saw something come out and move away.

In particular, Gonzales said he had observed a broken piece of wood come out from inside the machine back through the infeed opening and then went towards the other rip saw machine. However, Gonzales said he had never seen this happen before. [ 45 ] As well, the other workers, who worked with the rip saw machines at Alpa Lumber, had testified that they had never seen a stake of wood or a piece of wood being ejected from the infeed opening of any of the rip saw machines at the plant.

Only, Ma Phao, the injured worker, testified to having heard from others about this happening before, but did not elaborate or give any details or circumstances about what he had heard about pieces of wood being ejected out of a rip saw machine. [ 46 ] Moreover, no one, including Charles Charron, the expert witness, could explain how it had been possible that a stake of wood could be ejected from Rip Saw #1, which had been built and designed with several levels of protective measures, shields, and guards for preventing splinters and shards of wood from escaping or from being kicked back out of the infeed end of the machine. (

d) The Stop-Use Order Issued By MOL Inspector Coulter. [ 47 ] MOL Inspector Mark Coulter had arrived at the site of the accident at 13130 Dufferin St., King City, Ontario, at 7:51 p.m. on May 6, 2014.

MOL Inspector Coulter put a stop-use order on Rip Saw #1 and required that Rip Saw #1 be tested and reviewed by a professional engineer at the expense of Alpa Lumber and to supply a professional engineer’s report bearing their seal and signature to the MOL stating that the equipment or make of device is not likely to endanger any worker before he would lift the stop-use order. [ 48 ] After he received the verbal opinion of Charles Charron, a professional engineer, that Rip Saw #1 would not likely endanger any worker, MOL Inspector Coulter lifted his stop-use order. This had been done on May 14, 2014.

(

e) The Corporate Defendant Is Alpa Lumber Mills Inc. O/A Alpa Lumber Mills [ 49 ] The corporate defendant is an Ontario corporation named Alpa Lumber Mills Inc., with an Ontario corporation number of 948032. It was incorporated on June 27, 1991, and is an active corporation. The registered address of the defendant corporation is 7630 Airport Road, Mississauga, Ontario. [ 50 ] The corporate defendant, Alpa Lumber Mills Inc., operates the wood processing or lumber mill plant under the style name of Alpa Lumber Mills, which is a business name registered to the corporate defendant. (

f) The Wood Processing Plant And Lumber Mill In King City, Ontario [ 51 ] The Alpa Lumber plant where the worker was struck and injured by a shard or stake of wood ejected from a rip saw machine is located at 13130 Dufferin Street, King City, Ontario. [ 52 ] There are approximately 50 people who work at the 13130 Dufferin Street plant.

At that plant, various forest or wood products are manufactured and distributed to industrial establishments, distributors, and retail lumber yards in southern Ontario and the United States. [ 53 ] In addition, there are band saws and four to six rip saw machines set up in the plant. [ 54 ] The workers at the plant start their work day at 7:00 a.m. The workers also have rest breaks in the morning and in the afternoon, as well as a lunch break.

During those breaks and at 6:00 a.m. before the shift starts, Vonusoth Sichantha, cleans the rip saw machines and checks the saw blades in the rip saw machines and changes them when it is necessary to do so. He does this cleaning and the checking of the saw blades four times every day. [ 55 ] Workers in the plant also rotate their duties. [ 56 ] Moreover, Charles Charron, the expert witness, opined that the Alpa Lumber plant is very clean for a woodworking plant. (

g) The Number Of Workers Working At Rip Saw #1 And Rip Saw #2 At The Time Of The Accident [ 57 ] There were three workers working at Rip Saw #1 and three workers working at Rip Saw #2 on May 6, 2014 at the time of the accident. At Rip Saw #1, the workers that had been identified were San Kim Loung who had been working as the sorter and collector of the cut wood at the outfeed opening of Rip Saw #1, while Manulido Gonzales had been the worker feeding the lumber into the infeed opening of Rip Saw #1. There was also a third but unidentified and unnamed worker at Rip Saw #1.

For Rip Saw #2, Ma Phao had been identified as the sorter or collector of cut wood at the outfeed end of Rip Saw #2, while an unidentified and unnamed worker had been feeding lumber into the infeed opening of Rip Saw #2. The third worker at Rip Saw #2 had been identified as Anthony Coulter who had been strapping and stacking wood at that machine. (

h) Who Was The Injured Worker’s Employer On The Day Of The Accident? [ 58 ] Ma Phao, the injured worker, had testified that he is employed by Alpa Lumber. Therefore, the prosecution has proven beyond a reasonable doubt, that for the purposes of the OHSA , the corporate defendant, Alpa Lumber, had been the injured worker’s employer at the time of the accident on May 6, 2014. (

i) Who Was The Injured Worker’s Supervisor On The Day Of The Accident?

[ 59 ] On the day he was injured, Ma Phao, testified that his supervisor had been Van Kham Sichantha. Anthony Coulter, who had also been working at Rip Saw #2, also said his supervisor had been Van Kham Sichantha and that Van Kham Sichantha was the one who gave him instructions and that Coulter would also report to him. In addition, Manulido Gonzales, who had been feeding lumber into Rip Saw #1 had also identified his supervisor as Van Kham Sichantha. And, Sanh Kim Luong, who had been collecting the lumber cut at Rip Saw #1, also had identified his supervisor as Van Kham Sichantha.

Furthermore, Vonusoth Sichantha, who was responsible for cleaning the rip saw machines at the plant also said his supervisor had been Van Kham Sichantha. [ 60 ] Accordingly, the prosecution has proven beyond a reasonable doubt, that for the purposes of the OHSA , the defendant, Van Kham Sichantha, had been the injured worker’s supervisor at the time of the accident on May 6, 2014. (

j) The Safeguards And Preventive Measures Built Into Rip Saw #1 [ 61 ] Rip Saw #1 is a German-made machine. It was manufactured in 2007. [ 62 ] The machine is used for cutting lengths of wood or lumber of wood into smaller widths of pieces of wood. It also has built-in anti-kickback measures and splinter protection to prevent splinters or fragments of wood or the piece of lumber being fed into the machine from being kicked back out through the infeed opening of the machine. [ 63 ] At the time of the accident, eight-foot lengths of lumber were being fed into the infeed opening of Rip Saw #1.

The size of the eight-foot lengths of lumber being fed into the machine for that particular production or job were four inches by one inch pieces of lumber. [ 64 ] For the process of cutting lumber into smaller widths of lumber using Rip Saw #1, the worker places the piece of lumber length- wise against a guard rail and pushes the lumber toward the infeed opening of the machine.

There is also a guide roller at the front of the infeed opening of the rip saw machine that keeps the piece of lumber flush against the guard rail as it moves forward through the infeed opening of the rip saw machine. [ 65 ] At the infeed opening are two sets of anti-kickback teeth or fingers. One set would sit above the piece of lumber being fed into the infeed opening of Rip Saw #1 and one set would sit below the piece of lumber being fed in.

The front end of the piece of lumber being fed into the machine comes into contact first with the lower set of anti-kickback teeth before it would come into contact with the upper set of anti-kickback teeth or fingers. The anti-kickback teeth act independently of each other and only rise in the upper set or drop in the lower set when the piece of lumber touches only those teeth that would be in the path of the width of the piece of lumber.

In other words, only those particular teeth on the upper set or on the lower set of anti-kickback teeth would move when coming into contact with the piece of lumber as it is pulled into the rip saw machine by the machine’s conveyor belt, which also has teeth. The anti-kickback teeth or fingers that are not in the path of the width of the piece of lumber would not rise for the upper set or drop for the lower set.

These anti-kickback teeth or fingers keep in constant contact with the piece of lumber while in passes them and will return to their original position when the full length of the piece of lumber completely passes the first two sets of anti-kickback teeth or fingers.

If the saw blades kick the piece of lumber backwards toward the infeed opening, then the anti-kickback teeth are designed to dig into the lumber to prevent the lumber from moving further backwards. [ 66 ] After the front of the piece of lumber passes the first or lower set of anti-kickback teeth, the piece of lumber then comes into contact with a conveyor belt with teeth which pulls the piece of lumber towards the saw blades or blades if multiple cuts are to be made to the piece of lumber.

But before the front part of the piece of lumber reaches the saw blade or blades inside the rip saw machine, after going through the first two sets of anti-kickback teeth or fingers at the infeed end of the machine, it has to next pass a splinter shield or guard that swivels up as the front of the piece of lumber touches the splinter guard or shield. The splinter shield or guard also keeps in constant contact with the top of the lumber as it passes.

The splinter shield or guard prevents splinters or shard of wood from being kicked back out towards the infeed opening of the machine by the machine’s saw blades. [ 67 ] Then after the front of the piece of lumber passes or pushes the splinter guard or shield to rise up, it then goes under a pressure roller which keeps the lumber pressed against the conveyor belt with teeth. This pressure keeps the lumber pressed against the teeth of the conveyor belt which also makes the lumber keep moving forward towards the saw blade or blades and from moving backwards towards the infeed opening.

Next, the front of the piece of lumber would touch another set of anti-kickback teeth or fingers, which are then pushed upwards by the lumber as it passes. This third set of anti-kickback teeth or fingers also keeps in constant contact with the top of the lumber as the piece of lumber moves forward. This third set of anti-kickback teeth or fingers are also designed to dig into the

piece of lumber if the piece of lumber is kicked back by the saw blades, to prevent the piece of lumber from moving further backwards. [ 68 ] After passing the third set of anti-kickback teeth, the front of the piece of lumber then passes underneath a second pressure roller and a filler board just before the front of the piece of lumber reaches the saw blade or blades. [ 69 ] After the front of the lumber reaches the saw blade or blades the pieces of cut lumber continue forward until it reaches a third pressure roller that keeps the pieces of lumber pressed against the conveyor belt. [ 70 ] Finally, the front of the pieces of cut lumber reaches a fourth set of anti-kickback teeth or fingers and pushes the anti-kickback teeth or fingers upwards as the pieces of cut lumber move forward.

Again, this fourth set of anti-kickback teeth or fingers is in constant contact with the top of the pieces of cut lumber as it passes and is also designed to dig in if the cut pieces of lumber are kicked or pulled backwards by the machine’s saw blades. [ 71 ] Therefore, Rip Saw #1 has been designed and built with four sets of anti-kickback teeth or fingers, pressure rollers, and a toothed conveyor belt to prevent the piece of lumber being processed inside the machine from being kicked backwards out of the machine.

It is also built with a shield or guard that prevents splinters from being sent backwards out of the infeed opening of the machine. [ 72 ] In addition, after the eight foot long piece of lumber is nearly completely inside the rip saw machine and the worker, who feeds the lumber into the infeed opening of the machine, places another piece of lumber against the guard rail to be pushed into the machine, this second piece of lumber would also act as an additional guard or shield to block any splinters or the kickback of material from going further backwards. [ 73 ] Furthermore, when the cover for the rip saw machine is removed or raised the saw blades inside the rip saw machine will not rotate. [ 74 ] As well, there is an exhaust tube or duct that is attached to the top of Rip Saw #1, which is attached to a central vacuum or dust collecting system that vacuums out the sawdust and wood chips inside the machine.

This central dust collection system collects all the saw dust and chips from all the rip saw machines. (

k) The Risks And Hazards In Operating Rip Saw #1 That Had Been Identified By The Manufacturer In The Operator’s Manual [ 75 ] At page 56, in subsection 6.1 of the operating manual for Rip Saw #1, which is for the 2007 model ProfiRip KM310 rip saw (see Exhibit #14), the manufacturer has set out and identified a list of “remaining” risks and hazards in the operation of the machine. These risks and hazards have been set out in a table under the heading “Trouble Shooting”.

In that table, in the column labelled “Fault”, a safety risk in the operation of the rip saw has been particularized as “splinter or kick-backs”, which the manufacturer indicates could be caused by the “Saws in poor condition”, the “Exhaust too weak or clogged”, “Gang ripping without pressure board”, “Anti-kick-back fingers and splinter guards jammed (dirty, clogged with resin)”, or “Individual anti-kick-back fingers working badly or not at all”: Fault Cause Remedy … Splinter or kick- backs Saws in poor condition. Sharpen or replace saw blades.

Exhaust too weak or clogged Check exhaust system and increase power, if required Gang ripping without pressure board Use of pressure board. Anti-kick-back fingers and splinter guards jammed (dirty, clogged with resin). Clean anti-kick-back fingers and splinter guards Individual anti-kick-back fingers working badly or not at all. Inspect and replace, if necessary.

… [ 76 ] But more important, the manufacturer also identified remedies to address the possible causes for splinters or kick-backs occurring that included sharpening or replacing saw blades that are in poor condition; checking the exhaust system on each rip saw and increasing its power if the exhaust is too weak or clogged; using a pressure board when gang ripping lumber; cleaning anti-kick-back fingers and splinter guards that are dirty or clogged with resin to prevent anti-kick-back fingers and splinter guards jamming; inspect and replacing individual anti-kick-back fingers that are working badly or not at all. [ 77 ] In addition, at p. 2 of the 2007 Operating Manual (Exhibit #14) under the “General remarks” subheading that is under the

section 2.0 heading of “Safety Instructions for Rip Saw”, the manufacturer expressly states that the “operator should not remain immediately in front of the infeed opening of the machine”, which is recognition by the manufacturer of the inherent risk or hazard to the operator of the machine from something being potentially kicked back out of the infeed opening of the machine [ emphasis is mine below ]: To avoid accidents – whether caused by the machine or by the workpiece – wear gloves and protective footwear, hearing protectors, and a leather apron.

Never modify the machine except as authorized by the manufacturer, and never use brute force when operating it. The operator should not remain immediately in front of the infeed opening of the machine . Depending on the job to be done, it may be useful to install a support table in front of the infeed opening. [ 78 ] Also, at p. 3 of the 2007 Operating Manual, under the “Anti-kickback protection and splinter guards” subheading that is under the

section 2.0 heading of “Safety Instructions for Rip Saw”, the manufacturer expressly states that the anti-kickback teeth or fingers should be frequently checked to see that they are in good working order. And, that they should be swivelled “several times a day” and that any chips and sawdust present should be removed, since it can cause the fingers to jam.

In addition, the manufacturer states that the interior of the machine should be cleaned from time to time as necessary so that chips and splinters do not accumulate [ emphasis is mine below ]: It is forbidden to manually lift the anti-kickback fingers while the saw arbour is turning (except for the passage of the workpiece). Check the fingers frequently to see that they are in good working order . Swivel them several times a day and remove any chips and sawdust present – they can cause jamming of the fingers.

The saw arbour must be at a COMPLETE STANDSTILL while this is done and there must be no workpiece in the machine. Clean the interior of the machine from time to time as necessary so that chips and splinters do not accumulate . [ 79 ] Furthermore, at p. 3 of the 2007 Operating Manual under the “Tooling” subheading that is under the

section 2.0 heading of “Safety Instructions for Rip Saw”, the manufacturer also expressly states that the saw blades have to be resharpen in due time and cleaned with suitable agents to maintain their quality and to increase their operational safety, and that worn saw blades and pressure boards have to be replaced as necessary [ emphasis is mine below ]: Carefully unwrap the tools and mount the saw blades and spacers on the arbour or the bushing, mount with utmost care and accuracy. Resharpen the saw blades in due time and clean them with suitable agents to maintain their quality and increase operational safety .

Replace worn saw blades and pressure boards as necessary . [ 80 ] But more significantly, at page 15 of the 2007 Operating Manual under the

section 4.2 heading of “Orderly Application and Remaining Risk”, the manufacturer expressly states that the orderly application of the machine includes “paying attention to the operator manual” as well and that “all safety rules have to be strictly observed”.

In addition, the manufacturer states that the machine has been designed according to the latest safety standards, but that there is, however, the risk of danger to “the operator or third persons, the machine, or other real values”, and that the machine still has remaining risks, including the risk of “kicked back material or splinters” and the risks associated with defective anti-kickback fingers that are clogged, wrongly adjusted, rusty, or bent.

However, the manufacturer states that these remaining risks can be avoided by following the safety instructions set out in the manual [emphasis is mine below]: The machine is designed to cut wood and wooden material. Any other application is not considered to be orderly. Any damages resulting from non-orderly application are not at the manufacturer’s responsibility. The risk has to be borne by the user. The orderly application includes paying attention to the operator manual as well . The machine has to be used by skilled and authorized personnel only.

The blades have to correspond to the dimensions listed in the [“]Technical Specifications” and have to comply with European Norm EN 847-1. All safety rules have to be strictly observed .

The machine has been designed according to latest safety standards . There is, however, the risk to endanger the operator or third persons, the machine, or other real values .

Risks remain - with unauthorized changes at the machine - when operating the machine without its safety devices - with inappropriate tools or tool fixation - with kicked back material or splinters - with defective anti-kick-back fingers (clogged, wrongly adjusted, rusty, bent) - when solvents are released as the spray-unit reservoir is filled; - due to dust, when the exhaust unit is not properly connected - with adjustment works, e.g. pressure board adjustment and sawing into the pressure board - with prohibited change of saw blade rotation direction - with inappropriate operation of lasers - due to gaps between machine and conveying units as described under see “Installation”” on page 11. - When ripping unedged material (board with wane), for safety reasons, the board must be fed in the saw with the wany side on top (sketch) - It is absolutely inadmissible to feed stacked boards in the rip saw (see sketch) - Conically shaped boards have to be fed in the saw with the narrow end first (see sketch) All these remaining risks can be avoided by following the safety instructions . [ 81 ] Moreover, at page 22 of the 2007 Operating Manual, in respect to the anti-kickback protection and splinter protections built in Rip Saw #1, under the

section 4.10 heading of “Anti-kick-back Protection and Splinter Protection”, the manufacturer expressly advises that the anti-kickback elements, which includes the grab type anti-kickback teeth or fingers, should not have too much lateral play, but that they must be loose enough to individually return in their original positions after the material is fed through.

In addition, the manufacturer advises that the anti-kickback teeth or fingers have to be checked regularly for function and safety, and that the long anti-kickback elements in the diagram labelled as (1) and (2) are the most important ones, and that they have to be checked and cleaned very frequently [ emphasis is mine below ]: The complete set of anti-kick-back protection consists of - Grab type anti-kick-back fingers mounted at the pressure roller support, in front of the pressure roller support, in front of the first pressure roller (3) - Splinter-protection row combined with linked rebound elements in front of the first pressure rollers (1) (2) - And a splinter-protection row mounted in front of the transport chain at the infeed end

(4) The anti-kick-back elements must not have too much lateral play, but they must be loose enough to individually return in their original positions after the material throughfeed . They have to be checked regularly for function and thus safety.

The long elements (1)(2) are the most important ones and have to be checked and cleaned very frequently . [ 82 ] Also, in respect to the anti-kickback fingers and splinter guards, at page 24 of the 2007 Operating Manual under the subsection 5.1 heading of “Initial start-up”, the manufacturer expressly states that the splinter guards and the anti-kickback obstacles are to be checked to see that they are free to move individually and that they swing back freely into their initial positions just above the surface of the feed chain when released [ emphasis is mine below ]:

- Check that the splinter guards and the anti-kickback obstacles are free to move individually and that they swing back freely into their initial positions just above the surface of the feed chain when released . The saw must be STOPPED during this inspection. [ 83 ] And, in respect to the maintenance and cleaning of that particular model of rip saw machine, the manufacturer expressly states at page 59 of the 2007 Operating Manual under the

section 7.0 heading of “Maintenance – Lubrication and under the subsection 7.1 heading “General Information”, the machine had been designed so as to require little maintenance, but that nevertheless, it should be cleaned regularly and thoroughly in order to maintain its performance and ensure its trouble-free operation and that regular cleaning also helps to prevent defects and accidents [ emphasis is mine below ]: - The machine is designed so as to require little maintenance. Nevertheless, it should be cleaned regularly and thoroughly in order to maintain its performance and ensure its trouble-free operation .

Regular cleaning also helps to prevent defects and accidents . [ 84 ] On the other hand, in respect to the positioning of the rip saw machine, at page 12 of the 2007 Operating Manual under the

section 3.3 heading of “Installation”, the manufacturer provides instructions and recommendations about where the rip saw machine can be positioned.

However, the manufacturer did not give specific instructions on how a rip saw is to be positioned or located in relation to the position or location of other machines, other rip saw machines, in relation to workers or worker traffic, or in respect to what can be around the vicinity of the rip saw machine, except that there had to be “sufficient space for the workpiece at the discharge end of the machine in order to preclude the risk of injury to personnel.” In addition, the manufacturer recommended that one of their technicians should perform the work of levelling the machine since their technician “can also provide the appropriate instruction to ensure that optimum performance will be obtained when the machine is put into operation.” [ emphasis is mine below ]: The machine can be set up on any even floor that will carry its weight, and does not need a special foundation.

Level the machine both longitudinally and transversally (see installation diagram) using a mason’s level, with the saw arbor and top of the feed chain as planes of reference. The level-adjustment bolts are located next to the holes for the mounting bolts in the feet of the machine. We recommend having one of our technicians perform this work as he can also provide the appropriate instruction to ensure that optimum performance will be obtained when the machine is put into operation .

Ensure that there is sufficient space for the workpiece at the discharge end of the machine in order to preclude the risk of injury to personnel . … Set the machine up in a dry place having at least a roof in order to avoid exposure to extreme temperatures. … Never install the machine where there is a risk of explosions (e.g. in a paint shop). (

l) The Layout Of The Rip Saw Machines In The Alpa Lumber Plant [ 85 ] Daniel Sperduti, the operations manager for Alpa Lumber, also said that the way the rip saw machines were set up in a line at the Alpa Lumber plant with the infeed end of Rip Saw #1 facing the outfeed end of Rip Saw #2, had been very similar to the way the rip saw machines had been set up in the Bel Air Lumber factory when Bel Air Lumber had been the owner of those same rip saw machines that are now in the Alpa Lumber plant.

Sperduti also explained that the rip saw machines in the Alpa Lumber plant were the same rip saw machines that had been owned by Bel Air Lumber and had been by Alpa Lumber from the Bel Air Lumber bankruptcy. [ 86 ] In addition, the distance separating the infeed end of Rip Saw #1 and the outfeed end of Rip Saw #2 had been estimated by the workers, who testified at trial, to be a distance of about 20 to 24 feet.

Furthermore, before the injury had occurred to Ma Phao on May 6, 2014, there had been no barrier, shield, or guard that had been placed or erected between the infeed end of Rip Saw #1 and the location where a worker would stand when collecting and sorting wood that comes out of the output end of Rip Saw #2. [ 87 ] The guards and shields that the defendants rely on in their due diligence defence of taking all reasonable care to prevent a worker from being injured by material or product being processed by Rip Saw #1 are found inside Rip Saw #1 and are not in respect to any guards or shields outside of the machine which would prevent injury to a worker in the vicinity of the infeed opening of the machine, once any product or material is actually ejected out of the machine.

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m) Alpa Lumber’s Cleaning And Maintenance Program For Preventing The Kickback Of Splinters and Wood In The Operation Of Their Rip Saw Machines [ 88 ] As indicated in the table of “faults, causes, and remedies” at p. 56 of the 2007 Operating Manual for Rip Saw #1, the kickback of wood and splinters could be prevented by the regular cleaning and the use of sharp saw blades in the machine; the checking of the exhaust system and increasing its power when the exhaust system is too weak or clogged; the use of a pressure board when the gang ripping of lumber is required; the cleaning of anti-kickback teeth or fingers and splinter guards to prevent them jamming from the teeth or fingers being dirty or clogged with resin; and the inspection and swiveling of the anti-kickback teeth or fingers and splinter guard to ensure that individual anti-kickback teeth or fingers and the splinter guard are working properly and replacing them if they are nor working properly. [ 89 ] Furthermore, one of Alpa Lumber’s workers, Vonusoth Sichantha , had testified that he was responsible everyday to clean the rip saw machines at the Alpa Lumber plant four times a day and to check and replace the saw blades in all the machines.

He also said he had cleaned the inside of the machine and had checked the saw blade of Rip Saw #1 on May 6, 2014, and that he had perform these tasks at the start of his shift at approximately 6:00 a.m.

The shard of wood that had escaped from Rip Saw #1 had injured Ma Phao at approximately 8:00 a.m. [ 90 ] It should also be noted that Vonusoth Sichantha is the brother of the defendant, Van Kham Sichantha, who has been charged for being the injured worker’s supervisor that had failed to ensure that Rip Saw #1 had been shielded or guarded so that the product, material being processed, or waste stock would not endanger the safety of any worker. [ 91 ] Vonusoth Sichantha also testified that he starts work at 6:00 a.m., and that before the other workers arrive for the start of the work day at 7:00 a.m., his job is to clean and set up all the rip saw machines, as well as checking and replacing the saw blades in the machines when it is necessary to do so.

He also said he does this everyday. [ 92 ] Furthermore, in outlining his routine, Vonusoth Sichantha said he cleans the inside and the outside of the rip saw machines daily by using a power blower. He also said he looks at the saw blades in the machines and blows everything. To clean the machines, he said he uses a device that blows air. In particular, he said he opens the rip saw machines and checks the blades really well to see that the blades are not burned, or whatever, and then blows out the rip saw machines.

In addition, he said that if he sees a problem with the blades, he then has to change the blade and put on a new one. He also said he cleans everything nicely, including the chain, rollers, and guards. Furthermore, he said he also makes sure everything is moving well. He also said he blows the chain so there is no dust on the chain and cleans and blows everything out, as well as checking that the guard and rollers are moving well and keeps cleaning them to make sure.

He then he said he starts the machine so that it turns really slow and then blows the outside of the rip saw machines, cleans up, and then he is done. [ 93 ] Vonusoth Sichantha also said he then repeats the cleaning of the inside of the rip saw machines and the checking of the saw blades at the morning break held at 9:00 a.m. and then again at noon time.

He also said that before Ma Phao had gotten hurt, Vonusoth Sichantha said he always cleaned Rip Saw #1 every day. [ 94 ] Moreover, Vonusoth Sichantha said that depending on the customer’s needs, between three to six rip saw machines are used at the plant. [ 95 ] Vonusoth Sichantha also said he had cleaned Rip Saw #1 on the morning of May 6, 2014, and that he had cleaned all the rip saw machines on that day, as well as all the saws in the month of May of 2014. [ 96 ] In addition, Charles Charron, said that for a wood-working place, the Alpa Lumber plant was a clean workplace. [ 97 ] Furthermore, Daniel Sperduti, the Alpa Lumber operations manager, testified that the plan to prevent any worker from being injured by splinters or kick-backs, included training the worker, who fed the lumber into the rip saw, to stand to the side, and assigning and designating a worker to clean and blow out the dust and wood chips from the inside of the rip saw machines three times a day and to also inspect the rip saw machines three times a day, and to replace dull or poor saw blades when it was necessary to do so. [ 98 ] However, there has been no evidence adduced by the defendants about a system that had been established for someone to

regularly check and to swivel the anti-kickback teeth or fingers individually and splinter guards in the rip saw machines to determine if they were working badly or not at all, and for someone to record these regular checkups for the adequacy and functioning of the anti- kickback teeth or fingers and splinter guards in the individual rip saw machines at the plant. [ 99 ] And, because Charles Charron, the professional engineer, had testified in particular that he had observed a broken anti-kickback finger on the output side of the saw blades during his inspection conducted on Rip Saw #1, and because the 2007 Operating Manual for Rip Saw #1 had required someone to swivel the anti-kickback teeth or fingers and the splinter guards in the rip saw machines several times a day to ensure that they were not working badly or not at all, then taking all reasonable steps required that Alpa Lumber assign someone to check and swivel the anti-kickback teeth or fingers and the splinter guards in the rip saw machines several times a day to ensure that the risk of the kickback of splinters and fragments of wood w

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