Ontario (Ministry of Labour) v. Cobra Float Service Inc., 2017 ONCJ 763

ONTARIO COURT OF JUSTICE CITATION: Ontario (Ministry of Labour) v. Cobra Float Service Inc. , 2017 ONCJ 763 DATE: November 15, 2017 BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF LABOUR) ………………………… ( Prosecution ) -AND- COBRA FLOAT SERVICE INC. .....……………...… ( Defendant ) Heard Before: Gerry Manno , Justice of the Peace On October 12, 13 & 19, 2016 and June 8 th & 14 th , 2017 Reasons for Judgment released on November 15 th , 2017 Counsel for the Defendant……………………………………..E.J. Battiston Counsel for the Crown (Ministry of Labour)…………….………W.

Wilson Background & Charges before the Court: ( 1 ) The Charge: “Cobra Float Services Inc., at 450 Bowes Road, Concord, Ontario is charged on or about the 25 th day of May 2013, at the City of Brampton, in the Central West Region, in the Province of Ontario, that they did commit the offence of failing as an employer to ensure that measures and procedures prescribed by Section 37(1) of Ontario Regulation 213/91 were carried out in a workplace located at or near James Potter Road West of Creditview Road, Brampton, contrary to Section 25 (1)(

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

chapter one, as amended.

Particulars: a curb machine was moved at a project in a manner that endangered a worker. A worker, Luis Pinto, was killed. ( 2 ) Background: Cobra Float (hereinafter referred to as “Cobra” or the “defendant” was under contract to deliver a curb making machine to a subdivision being built in Brampton on that fateful date, time and place. A flatbed truck and trailer was used to load that curb machine and transport it to the site by the company’s employee, Mr. L. Pinto. Once at the site, Mr.

Pinto was also responsible for unloading that curb machine off of the flatbed trailer so that it could begin work extruding curbs which would form part of a subdivision being built at that location. On a sunny morning, when the ground was dry and level (flat), an accident occurred. Though there were no witnesses to the accident, it appears that whilst in the process of unloading that curb machine, it tipped over onto the unfortunate Mr. Pinto, pinning him under that machine. He later succumbed to his injuries.

By way of background, the subdivision site was owned by a company by the name of Sandyshores who contracted with Gulfview Contracting Ltd. to build out the site, who in turn, subcontracted to Quattro Co . (the owner and ultimate operator of the curb machine in question) who then subcontracts the delivery and pick-up of this curb machine with Cobra Float, whose responsibility it is to load and unload the curb machine onto flatbed trucks, transport it to and from the subject site, then pick it up once it has performed its intended function.

This particular curb machine had what is referred to as an ‘offset’ wheel or tire which sits between the two normally placed wheels. The flatbed trailer and truck that transports such a machine is not rectangular as most flatbeds are. This trailer had a space between the two tires that would permit the trailer to be raised and attached to a truck.

Such a connection is referred to as a ‘gooseneck’ connection. ( 3 ) Following the accident, an investigation was launched and spearheaded by the Ministry of Labour (hereinafter referred to the “MOL”) and the charge under the Occupational Health & Safety Act was laid (hereinafter referred to as the “OHSA”) under 25 (1) (

c) of that Act. That charge was expressed in Information # 6477 sworn/commenced on May 23 rd , 2014. ( 4 ) There had been two Judicial Pre-trials conducted in hopes of narrowing the issues and evidence wherein it was decided that a six day trial was needed to hear the evidence (only five days were used to complete matters). ( 5 ) Following the defendant’s application for a non-suit verdict, and after due consideration, the court dismissed this motion with written reasons delivered and filed on June 8, 2017.

This constitutes the court’s decision of this strict liability offence, having heard and considered all of the evidence tendered on the scheduled trial dates. ( 6 ) List of Exhibits tendered during the course of the Trial: Exhibit 1 – Agreed Statement of Fact Exhibit 2 – Statement of Death (Mr. Pinto) Exhibit 3 – Corporation Profile Report Exhibit 4 – Various Photos Exhibit 5 – DVD of flatbed truck and equipment arriving on site Exhibit 6 – Package of Documents Exhibit 7 – 67(1) Certificate Exhibit 8 – Form 1000 Exhibit 9 – Cobra Safety Policy

Exhibit 10 – M.O.L. – Notice of Accident Exhibit 11 - Form 7 – employment report Exhibit 12 - Domson Engineering Report Exhibit 13 - Curb Machine Owner’s Manual Exhibit 14 - Cobra – O.H.S.A. Policy Exhibit 15 - Cobra – unloading procedures Exhibit 16 - Schematic Diagram Exhibit 17 - Cobra Trailer

Schedule Exhibit 18 - Cobra Trailer Log Voir Dire Exhibits: 1 - CV of Medhat Abskharoun (also Trial Exhibit 19) 2 - Engineer’s Report (also Trial Exhibit 20).

(7) Witness List: Crown Witness #1 – Mr. Karim Kassam Crown Witness #2 – Mr. Medhat Abskharoun Crown Witness #3 – Mr. V. Vieira Witness #4 – Mr. Martellacci Witness #5 – Mr. Conetta Witness #6 – Mr. F. Velocci

(8) Applicable Statutes, Common Law Citations & authored materials consulted: Occupational Health and Safety Act, R.S.O. 1990, c.O.1., as amended. Occupational Health and Safety Act, R.R.O. 1990, Regulation 856. Provincial Offences Act, R.S.O. 1990, c. P.33, as amended. “Time to regulate occupational health & safety professionals” The Toronto Star (September 4, 2017). Common Law: R v. 413554 Ontario Ltd. (2005), Carswell Ont. 8400 (C.J.). R. v. Rio Algom Ltd., (ON CA), [1988] OJ No. 1810 (C.A.). R. v. Algoma (1989), 1 C.O.H.S.C. 1(Ont. C.A.). Ontario (Ministry of Labour) v. Cox Construction Ltd., [2009] OJ No. 5976 (C.J.).

Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769 , [2007] OJ No. 4339 (C.A.), leave to appeal refused [2008]S.C.C.A. No. 24. Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc., 2010 ONSC 2013 , [2010] O.J. No. 1504 (S.C.J.), leave toappeal refused 2011 ONCA 13 , [2011] OJ No. 24 (C.A.). R. v. Funduk (1992), 10 C.O.H.S.C. 103 (Prov. Ct.). Ontario (Ministry of Labour) v. General Motors of Canada Ltd., [1991] O.O.H.S.A.D. No. 11. Ontario (Ministry of Labour) v. Hamilton (City), (ON CA), [2002] OJ No. 283 (C.A.). R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729. R. v.

King Paving & Materials Co. (2007), Carswell Ont. 8494 (O.C.J.). R. v. Khan, 2014 ONSC 5664 , [2014] O.J. No. 6488. R. v. Khawaja, 2010 ONCA 862 , [2010] O.J. No.5471. R v. Komatsu Rents 2008 ONCJ 551 , 2008, O.N.C.J. 551. R v. Lifcus, (SCC), [1997] 3 S.C.R. 320. R. v. MacMobile Welding & Contracting Inc. (2002), Carswell Ont. 5814 (O.C.J.). R. v. Petro-Canada, (ON CA), [2003] O.J. No. 216. R. v. Prince, (SCC), [1986] 2 S.C.R. 480. R. v. Prince Metal Products Ltd, [2011] O.J. No. 6450 (C.J.). R. v. Proboard Ltd. (1990), W.C.B. (2d) 567 (Ont.Prov.Ct.). Ontario (Ministry of Labour) v.

Quinton Steel (Wellington) Limited, 2014 ONCJ 713 , 2014 O.N.C.J. 713. R. v. Stelco Inc., [1989] O.J. No. 3122 (O.J.) R. v. Sault Ste. Marie (City), (SCC), [1978] 2 S.C.R. 1299. R v. Saunders, (SCC), [1990] 1 S.C.R. 1020, 56 C.C.C. (3d) 220. R. v. Seeley & Arnill Aggregates Ltd., [1993] OJ No. 442 (Ont. Ct. (Gen. Div.). R. v. Skorput, (ON CJ), [1992] O.J. No. 832 at pp. 5-6 (Prov. Div.). R. v. Timminco Ltd., (ON CA), [2001] OJ No. 1443 (C.A.). R. v. Valley Forest Products Ltd. (1990), CanLII 4045 (N.B.C.A.). R. v. Wyssen, (ON CA), [1992] OJ NO. 1917 (C.A.).

Decision of the Court: The actus reus has been proven beyond a reasonable doubt, however, the defence of due diligence has been successfully established bythe Defendant (on a balance of probabilities basis) and accordingly, the Defendant is not culpable in the eyes of this court. As such, thecharges before this court shall be dismissed.

(9) Crown (MOL) Position (from submitted Factum) (para. 9 to 82 below):

(10) The defendant violated the Occupational Health and Safety Act on May 25, 2013, when the defendant failed to ensure thatequipment at a project was moved in a manner that did not endanger a worker, as is required by

section 37 of the Regulation governingconstruction projects. In particular, a curb machine was moved at a project in a manner that endangered a worker. A worker, Luis Pinto,was killed.

( 11 ) On May 25, 2013, Luis Pinto was employed by the defendant as a transport driver. He was fatally injured in a workplace incident while he was unloading a piece of heavy equipment, known as a curb machine, from a float trailer. He was crushed when the curb machine tipped over onto its side. ( 12 ) The actus reus is proven by the undisputed evidence that the curb machine was moved in a manner that killed Mr. Pinto. On this issue, there are no facts in dispute, and the law is clear: the Crown is not required to prove how or why the curb machine tipped over.

The potential causes of the event are properly considered only in assessing the defence of due diligence . ( 13 ) There is no viable due diligence defence on the evidence heard at trial. The defendant did not take all reasonable care to avoid a curb machine tipping onto a worker while it was being offloaded from a float trailer.

While a defendant is not required to prove the precise cause of the accident before invoking the defence of due diligence , the defendant must show that it took all reasonable care to avoid any foreseeable cause. ( 14 ) Contributing factors may have included the failure to have a secure ramp supporting all four wheels of the curb machine as it travelled from the float trailer to the ground, or the failure to use an adequate substitute for a fixed ramp; the approximate 23” elevation of the curb machine; and the fact that the controls were found on “auto” rather than on “manual”. ( 15 ) The defence of due diligence cannot succeed.

The defendant failed to take all reasonable care in relation to each and every one of these potential causes or contributing factors. ( 16 ) On the issue of a secure ramp extending across the width of the float trailer or an adequate substitute, the facts clearly establish that the defendant failed to take all reasonable care to ensure that an appropriate ramp was used: (

a) The defendant assigned Mr. Pinto to transport a machine with an offset wheel, using a float trailer that did not have a ramp across the width of the trailer that would accommodate the offset wheel; (

b) The practice of using a piece of wood was an inadequate substitute for a ramp, because the offset wheel drops and tilts the machine (as seen even in the defence video, Exhibit 25), because the piece of wood is not sloped and does not provide a continuous surface for the wheel to travel; (

c) the piece of wood is not otherwise secured and may move from its position; (

d) the piece of wood must be precisely placed, is narrower than the tire, and the wood may move or tip if the wheel does not hit it squarely; (

e) The piece of wood is not designed to carry the load of the curb machine; (

f) even if a piece of wood were an adequate substitute for a ramp (which the Crown strongly denies), the defendant failed to ensure that Mr. Pinto used a piece of wood to unload the curb machine; (

g) the defendant was adamant that it is necessary to use the piece of wood, but the defendant did not include this in its written unloading procedures; did not train Mr. Pinto to use the piece of wood; and took no steps whatsoever to enforce the use of a piece of wood in unloading a curb machine. ( 17 ) On the issue of the elevated height, the defendant failed to take all reasonable care to ensure that Mr. Pinto did not inappropriately raise the machine’s height:

(

a) The machine must be elevated to some degree to clear the ramp, and even more so when a wood form is attached to the bottom of the machine, which was the case here. (

b) The manual advising not to raise the machine more than 12” was not provided to Mr. Pinto. (

c) There is no evidence that Mr. Pinto was warned of the dangers of elevating the machine or supervised to ensure that he understood and followed this direction. ( 18 ) On the issue of the controls being found on “auto”, the defendant did not take all reasonable care to ensure that Mr. Pinto unloaded the machine in manual mode: (

a) The defendant provided no training whatsoever in the operation of the curb machine. (

b) A curb machine may be left in “auto” by the operator before the transport driver is required to move the machine, and there is no suggestion that Mr. Pinto was informed of this (or the importance of resetting the controls to “manual”). PROSECUTOR’S

SUMMARY OF THE FACTS ( 19 ) Luis Pinto had been employed by the defendant as a transport driver for approximately 22 months before he was killed on May 25, 2013. On May 25, Mr. Pinto was tasked with delivering a curb machine to a construction site. While offloading the curb machine from a float trailer, the machine tipped and fell onto its left side. Mr. Pinto was crushed. Evidence of K. Kassam, Transcript, Oct 12, 2016: 50/12-14 Evidence of R.

Martellacci, Transcript, June 8, 2017: 66/22 – 67/7 Exhibit 11: WSIB Form 7 Employer’s Report. ( 20 ) The curb machine involved in the incident was owned by Quattro Construction. In response to an Order issued by the Inspector, the defendant provided information that Mr. Pinto had delivered the same or a similar curb machine four times before without incident. At trial, the defendant introduced evidence that Mr. Pinto had moved a Quattro curb machine 27 times, and that a Quattro curb machine was moved 66 times by a transport driver other than Mr. Pinto. Evidence of K.

Kassam, Transcript, Oct 12, 2016: 39/2-40/23; 62/30 – 63/13; 90/19 – 91/22 Evidence of V. Vieira, Transcript, October 13, 2016: 82/15-22 Evidence of R. Martellacci, Transcript, June 8, 2017: 52/3 – 57/3; 64/10 – 65/10 Exhibit 6: Package of documents. ( 21 ) The float trailer provided to Mr. Pinto was a trailer with a “gooseneck”. This means that the front of the trailer is attached to the truck. To drive equipment onto or off the trailer, the trailer must be detached from the truck. Then, after the truck is driven away, two parallel ramps are available at the front of the trailer. Each ramp is 28 inches wide.

A machine can be driven onto or off the trailer using these ramps. There is an approximately 30” gap between the two ramps: in this particular type of float trailer, the ramp does not extend across the entire width of the trailer. Evidence of M. Abskharoun, Transcript, Oct 13, 2016: 23/15-23 Evidence of R. Martellacci, Transcript, June 8, 2017: 12/17 – 13/8; Transcript, June 8, 2017,

part 2:9/4-10. ( 22 ) The curb machine is one of the trickiest machines to load or offload from a float trailer. This is because one of its four wheels is “offset”. In other words, one rear wheel is not parallel with the wheel in front of it, but is found in approximately the middle of the machine. (The two front tires were 70 inches apart, and the two rear tires were 39 inches apart. Evidence of M. Abskharoun, Oct 13,

19/30 – 20/4). On this float trailer, the offset wheel cannot travel on one of the ramps. It travels onto or off the machine in the area of the gap between the two ramps. Evidence of M. Abskharoun, Transcript, Oct 13, 2016: 20/24-32. Evidence of R. Martellacci, Transcript, June 8, 2017: 51/7-8. ( 23 ) Also, the curb machine itself can be raised and lowered. The higher the elevation of the machine, the more prone it would be to tipping; or, in other words, the higher the machine, the less angle needed to pass the “tipping point”.

Once the centre of gravity goes beyond the “tipping point”, then the machine will tip and fall over. Evidence of M. Abskharoun, Transcript, Oct 13, 2016: 39/8 – 40/13; 42/8-32. ( 24 ) During transport on the float trailer, the curb machine is lowered to its lowest position. The machine does need to be elevated to some degree to offload it from the float trailer. This is because it needs to clear the ramp. Unlike a curb machine shown in defendant’s videos in court, the curb machine involved in the incident had a wood form attached to its body.

This means that the machine would need to be elevated to an even higher position to clear the ramp than a machine without a wood form attached to it. Mr. Martellacci, the owner of the defendant corporation, estimated that the machine in the video (without the wood form attached) needed to be raised 13 or 14 inches for unloading. Evidence of M. Abskharoun, Transcript, Oct.13, 2016: 73/17-28; Transcript, June 14, 2017: 61/31 – 62/22 Evidence of V. Vieira, October 13, 2016: 100/8-26 Evidence of R. Martellacci, Transcript, June 8, 2017: 44/26 – 46/1 Evidence of G.

Vieira, Transcript, June 14, 2017: 79/25 – 80/3; 90/13 – 93/7. ( 25 ) Quattro Construction provided the Ministry of Labour Inspector with the owner’s manual for the machine. The manual says that the curb machine should not be moved when it is elevated more than 12 inches. Mr. Pinto was not provided with the manual: he was expected to know this from previous experience. It did not appear that other workers knew this, as they had not seen the manual, and estimated that the curb machine needed to be raised somewhat higher than 12 inches, even without the wood form attachment. As above, Mr.

Martellacci believed the machine (without the wood form) needed to be raised 13 or 14 inches. Evidence of K. Kassam, Transcript, Oct 12, 2016: 53/17 – 54/17 Evidence of M. Abskharoun, Transcript, Oct 13, 2016: 53/7 – 54/23; 72/30 – 73/13 Evidence of V. Vieira, Transcript, October 13, 2016: 96/22 – 97/13 Evidence of R. Martellacci, Transcript, June 8, 2017: 88/29 – 89/6 Exhibit 13: Owner’s manual for EasiPour Curb Machine. ( 26 ) On the surveillance video showing Mr.

Pinto driving the float trailer onto the site, it appears that the curb machine is sitting low on the trailer, that is, it did not appear to be elevated while it was being driven to the site, before unloading. Evidence of K. Kassam, Transcript, Oct 12, 2016: 75/22 – 76/2. ( 27 ) From measurements taken after the incident, the lowest part of the curb machine – the bottom of the wood form attached to the machine -- was approximately 22 to 23 inches from the ground. This elevation meant that the angle required to tip the machine would be much less.

Also, because the offset wheel is close to the middle of the machine at the centre of gravity, this would further decrease the angle required to tip the machine. According to the Ministry of Labour Engineer, the height of approximately 22 to 23 inches was “definitely a significant factor”. A curb machine operator employed by Quattro Construction, who had loaded a curb machine onto a trailer once or twice, testified he would be concerned about elevating the machine to 23 inches for loading because the machine would not be properly stabilized.

A worker employed by the defendant testified that this was too great a height. Evidence of M. Abskharoun, Transcript, Oct 13, 2016: 38/32 – 39/7; 48/20-30; 53/12 – 54/23; 73/27-29; 79/16-20 Evidence of V. Vieira, Transcript, October 13, 2016: 91/27 – 92/15; 93/1-13 Evidence of M. Conetta, Transcript, June 14, 2017: 119/15-25.

( 28 ) The curb machine also has “auto” and “manual” controls that relate to the elevation of the machine. When set on “auto”, a machine may self-adjust the height of one set of wheels. This could decrease the stability of the machine. Evidence of R. Martellacci, Transcript, June 8, 2017: 32/15 – 33/4 Evidence of G. Vieira, Transcript, June 14, 2017: 75/10-30. ( 29 ) There is some complexity to the “auto” and “manual” settings. A worker who was employed by Quattro Construction as a curb machine operator described the operation of fixed and removable sensors.

Another worker described that the machine may be already set on “auto” when the defendant’s worker arrives to drive it onto the float trailer and that the driver must change the controls to “manual”. Evidence of V. Vieira, Transcript, October 13, 2016: 87/6 – 88/12; 97/13 – 102/11; 104/5 – 107/18 Evidence of M. Conetta, Transcript, June 14, 2017: 137/25 – 138/18. ( 30 ) When examined after the incident, it was observed that all settings on the curb machine were set to “auto”: the left front elevation, left rear elevation, and right side elevation.

This could have caused the machine to increase its elevation, if the machine began to self- level as it traveled off the float trailer. This movement and the raised elevation would increase the risk of tipping. Evidence of M. Abskharoun, Transcript, Oct 13, 2016: 34/1-21; 55/15 – 57/17; 58/14 – 59/18; 73/30 – 74/4. ( 31 ) Measurements were taken of the curb machine after the incident, while it was still tipped over and before it was moved to an upright position. There was a 6 ½ inch difference in the heights of the two rear wheels: the offset wheel was lower than the right wheel.

This would also have a very significant effect on tipping. The fact that the controls were set to “auto” could provide one explanation for the difference in the wheels’ height. Evidence of M. Abskharoun, Transcript, Oct 13, 2016: 27/24 – 28/29; 54/29 – 55/13; 79/3-15. ( 32 ) After the incident, the curb machine remained securely on site until it was transported offsite approximately one week after the event. The Ministry of Labour Inspector issued an Order requiring the machine owner to have the machine tested before it was put back into service.

The curb machine had been serviced in April 2013, the month before the incident, by Stronco Equipment. The curb operator who used this machine had not experienced any malfunctioning of the sensors for auto-levelling. The missing lever on the curb machine was not an indication of poor maintenance, as it had been deliberately removed for operational reasons. Evidence of K. Kassam, Transcript, Oct 12, 2016: 21/7-22; 50/28 – 51/30 Evidence of M. Abskharoun, Transcript, Oct 13, 2016: 76/12 – 77/2 Evidence of V.

Vieira, Transcript, October 13, 2016: 94/7-22; 102/8-11; 104/8-29 Exhibit 12: Domson Engineering Report (The Crown is not relying on the contents of the report: Transcript, October 19, 2016, 2-3). ( 33 ) In the Engineer’s opinion, the offset tire fell into the gap between the two ramps while it was being driven from the float trailer to the ground, and tipped over. The failure to have a ramp underneath the offset wheels and the elevation of the machine would be contributing factors. Evidence of M.

Abskharoun, Transcript, Oct 13, 2016: 49/13-25; 67/18 – 69/32; 74/5-28 Exhibit 20: Engineering Report. ( 34 ) Furthermore, in the Engineer’s opinion, this float trailer was not adequate for loading or unloading a curb machine. There are trailers where the ramp extends across the entire width of the trailer, which would provide a point of continuous contact for the offset wheel.

Similarly, a curb machine could be loaded or unloaded safely from this very float trailer, with the addition of a ramp placed into the gap that could withstand the load of the curb machine and was secured in place, at the appropriate angle. Evidence of M. Abskharoun, Transcript, Oct 13, 2016: 51/18 – 52/13; 70/1 – 72/29. ( 35 ) In the defence videos demonstrating a curb machine being unloaded from the trailer involved in the incident, the curb machine noticeably tilts towards the operator’s side as the offset wheel drops into the gap and onto the piece of wood.

Evidence of R. Martellacci, Transcript, June 14, 2017: 32/18 – 33/20 Exhibit 25: DVD 1. ( 36 ) Vitor Vieira, a curb machine operator who worked for Quattro Construction (which owned the curb machine involved in the incident), had loaded the curb machine onto a float trailer once or twice. In doing so, he inserted a block of wood into the gap between the ramps. He did not use a rectangular piece of wood similar to that described by the defendant’s workers. Rather, he used a wedge- shaped block of wood which was approximately 10 inches high at the large end and approximately three inches high at the small end.

This wedge-shaped block of wood had been provided by the float driver. Evidence of V. Vieira, Transcript, October 13, 2016: 89/15 – 90/22; 102/12-24. ( 37 ) Mr. Martellacci and worker witnesses insisted that a piece of wood must be used to load or unload a curb machine safely. The piece of wood was described as “the essential equipment” for moving the curb machine. However, much was left to the driver’s discretion: each driver could decide on their own what piece of wood was required, if any, depending on the machine being transported.

In the demonstration videos, an approximately 6” wide piece of wood was placed into the 30” gap, leaving a small gap on one side and a large gap on the other side. All witnesses associated with the defendant approved of this piece of wood as adequate for unloading a curb machine. Evidence of V. Vieira, Transcript, October 13, 2016: 103/28 – 104/7 Evidence of R. Martellacci, Transcript, June 8, 2017: 48/17-19; 81/7 – 83/10; Transcript, June 8, 2017,

part 2: 9/1-12; Transcript, June 14, 2017: 34/25 – 36/7 Evidence of G. Vieira, Transcript, June 14, 2017: 73/22 – 74/23; 83/13-24 Evidence of M. Conetta, Transcript, June 14, 2017: 114/3 – 115/5 Exhibit 25: DVD 1 and 2. ( 38 ) Mr. Martellacci described the piece of wood as acting as a ramp. Although referred to as a “wooden block”, it is not really a block, but something that more resembles a railway tie. The pieces of wood shown in the videos were six inches by six or eight inches, and approximately 18 to 24 inches long. The wood was narrower than the tire of the curb machine.

The piece of wood is rectangular, not shaped into a wedge. According to workers employed by the defendant, this is the type of piece of wood they would typically use when unloading a curb machine. Evidence of R. Martellacci, Transcript, June 8, 2017: 31/20-25; 40/3-12; 42/22 – 43/17; Transcript, June 14, 2017: 28/17 – 29/1; 33/25 – 34/2 Evidence of G. Vieira, Transcript, June 14, 2017: 81/1-21. ( 39 ) Mr.

Martellacci testified that it was not practical to fill the entire 30 inch gap between the ramps; he also maintained that this was not necessary, as long as the offset wheel comes down “straight on to the block of wood that acts as the ramp”. Also, a driver “coulda filled the whole gap with lumber if he wanted to”, although this would not provide a sloped surface for the wheel’s travel. The defendant did not provide any instruction to drivers to fill the entire gap with pieces of wood or to provide a sloped surface. The defendant did not provide workers with a solid ramp to fit into the gap.

The defendant specifically approved of the normal practice of putting an unsecured piece of wood into the gap that left a large empty space on at least one side, and that left the offset wheel to drop onto the wood, rather than roll down a ramp. Evidence of R. Martellacci, Transcript, June 8, 2017,

part 2: 9/21 – 11/26; Transcript, June 14, 2017: 28/8 – 29/29; 34/25 – 36/7. ( 40 ) The “Cobra Float Service Incorporated Safety Policy” does not provide guidance about how to load or offload heavy equipment. Each driver was given a copy of the policy and was supposed to read it. Evidence of K. Kassam, Transcript, Oct 12, 2016: 46/22 – 47/13 R. Martellacci, Transcript, June 8, 2017: 13/12 – 14/16; 23/2-13 Exhibit 9: Cobra Float Service Safety Policy. ( 41 ) In addition to the safety policy, the defendant had a written loading and offloading procedure.

There is nothing in the procedure that addresses the particular measures that need to be taken when transporting a curb machine. The written procedure is silent on the issue of using a piece of wood as a substitute for a ramp.

Evidence of K. Kassam, Transcript, Oct 12, 2016: 55/9-23 Evidence of R. Martellacci, Transcript, June 8, 2017: 27/1-12 Exhibit 15: Cobra Float Services – Loading and Unloading Procedures. ( 42 ) No witness had seen any piece of wood between the ramps at the scene of the accident. While there were pieces of wood on the trailer, there was no evidence that Mr. Pinto had placed a piece of wood into the gap before the incident. Of course, first responders had been involved with the scene before it was viewed by any of the witnesses at trial. Evidence of K.

Kassam, Transcript, Oct 12, 2016: 73/25-29; 85/6-13 Evidence of M. Abskharoun, Transcript, Oct 13, 2016: 38/7-23; 64/3 – 65/10 Evidence of V. Vieira, Transcript, October 13, 2016: 93/14-18 Evidence of R. Martellacci, Transcript, June 8, 2017: 44/4-14. ( 43 ) While the written procedure for loading and unloading was silent on the use of a substitute for a ramp, it does specifically contemplate that a spotter may be required. Mr. Martellacci would not expect Mr. Pinto to have used a spotter for this task. Mr. Martellacci did not have a recollection of training Mr. Pinto on working with a spotter.

It would be left to the driver’s judgment and discretion whether to use a spotter and a driver could ask “whoever’s around” to act as a signaler when unloading a piece of heavy equipment. Mr. Vieira had never used a spotter when unloading the curb machine. A Quattro Construction worker had loaded a curb machine onto a float trailer once or twice, without using a signaler and had never seen a transport driver using a signaler. Evidence of R. Martellacci, Transcript, June 8, 2017: 90/26 – 93/20; 97/5-12 Evidence of G. Vieira, Transcript, June 14, 2017: 75/31 – 76/5 Evidence of V.

Vieira, Transcript, October 13, 2016: 90/25 – 91/2; 92/17-27 Exhibit 15: Cobra Float Services – Loading and Unloading Procedures ( 44 ) Mr. Martellacci testified about informal discussions amongst the drivers as part of implementing the “regular safety meetings” mandated by the safety policy. There was no evidence from any worker employed by the defendant that this actually occurred. One worker specifically testified that he would just go home when the job was done, and did not engage in safety chats with a co-worker. Evidence of R. Martellacci, Transcript, June 8, 2017: 19/12 – 20/2 Evidence of G.

Vieira, Transcript, June 14, 2017: 87/7-13. ( 45 ) The defendant also tried to have safety meetings every three to four months. Although the safety meetings consisted of the entirety of the “training” provided to Mr. Pinto, as detailed further below, the defendant did not produce any records of the safety meetings. Mr. Martellacci could not provide the date of the first meeting Mr. Pinto attended. Mr. Martellacci did not know of the dates of any of the safety meetings. One worker, Mr.

Vieira, described safety meetings as usually taking place every six months, and recalled “videos of like WHMIS training and stuff like that”. Another worker testified that meetings were held every three months. Evidence of R. Martellacci, Transcript, June 8, 2017: 20/3-24; 24/15 – 25/14; 48/25 – 49/1; 71/21 – 73/6; 76/28 – 78/29; 89/4-27 Evidence of G. Vieira, Transcript, June 14, 2017: 68/15 – 69/10 Evidence of M. Conetta, Transcript, June 14, 2017: 108/2-32. ( 46 ) The defendant employed a safety and compliance consultant.

He helped with training, would keep the defendant compliant with the Ministry of Transportation, dealt with traffic tickets, and maintained the defendant’s Commercial Vehicle Operation Rating Registration in good standing. This safety consultant worked for the defendant approximately two or three days every couple of months. He did not attend every safety meeting. He dealt with the Highway Traffic Act, not with the Occupational Health and Safety Act . Evidence of R. Martellacci, Transcript, June 8, 2017: 9/13 – 10/17; 73/8 - 76/32; 78/30 – 79/1. ( 47 ) The defendant did not train Mr. Pinto after he was hired.

The defendant relied on his prior work experience. Any “training” was provided in the context of safety meetings, outlined above. Mr. Martellacci testified that one of the senior drivers would have spent a day with Mr. Pinto after his hire to see that Mr. Pinto could drive properly and that “he knew what he was doing” when loading and

unloading equipment. Mr. Martellacci testified that Mr. Pinto told him that he could move curb machines, and Mr. Martellacci watched Mr. Pinto move a curb machine the first time he was asked to perform this task. Mr. Martellacci recalled little about this, and could not confirm whether he watched Mr. Pinto operate one of the Quattro curb machines or a different curb machine; Mr. Martellacci could not recall the date (it was “shortly after” Mr. Pinto began work), and confirmed that the defendant did not follow up in any way or provide any specific training: Q. And what’s [sic] specific training was provided to Mr.

Pinto after he was hired? A. There was no training. He was already experienced. Evidence of R. Martellacci, Transcript, June 8, 2017: 20/25 – 22/23; 23/28 – 24/14; 50/27 – 52/2; 68/25 – 72/13; 85/6 – 86/16. ( 48 ) It was apparent that the defendant did not provide training to any of its workers regarding safe unloading of the curb machine. Another worker employed by the defendant, Gary Vieira, had moved the curb machine involved in the incident 12 times.

The operator of the curb machine, who worked for Quattro Construction, showed him how to move it, the first time, “And from there on it was all pretty much hands on experience”. He had never been shown a manual for the machine. The defendant did not participate in the instruction provided by the Quattro worker or check up on the information their own worker received. Evidence of G. Vieira, Transcript, June 14, 2017: 71/4 – 72/10; 87/15 – 89/6. ( 49 ) Another worker, Michele Conetta, testified proudly that he taught himself how to load and unload a curb machine: “it was all self- taught”. Evidence of M.

Conetta, Transcript, June 14, 2017: 105/31 – 106/28; 136/20 – 138/23. ( 50 ) Mr. Martellacci was asked what steps the defendant took to ensure that Mr. Pinto was advised of the actual or potential hazard of unloading a curb machine with an offset wheel: Q. What did the company do, again if anything, to make sure that Mr. Pinto was aware of the hazards, was aware of those? Was there anything beyond his experience and watching him the one time you spoke about? A. What did we do that would make him aware? Everything is dangerous in life. Q. So there was nothing specific? A. No, he was trained.

He was already experienced. He had probably a little bit more experience than I did. [emphasis added] Evidence of R. Martellacci, Transcript, June 8, 2017: 86/23 – 88/20. ( 51 ) There was no evidence, or even an indication, that Mr. Pinto had been given a copy of the manual for the curb machine. Despite the defendant’s safety policy that directs Cobra workers to operate equipment as recommended by the manufacturer, Mr. Martellacci believed that Mr. Pinto had not been provided with the manual. The defendant relied solely on Mr. Pinto’s experience before he was hired by the defendant. Evidence of K.

Kassam, Transcript, Oct. 12, 2016: 103/12-24 Evidence of R. Martellacci, Transcript, June 8, 2017: 83/10 – 85/6 Exhibit 9: Cobra Float Service Safety Policy. ( 52 ) The defendant introduced two videos into evidence, showing a curb machine being loaded and unloaded from two different trailers. The curb machine in the videos was not the machine involved in the incident. The curb machine in the videos had smaller tires than the

machine involved in the incident, and had two solid tires, rather than the four air-filled tires on the machine involved in the incident. The curb machine involved in the incident also had a large protruding water tank attached to it, as well as a wooden form attached to it atthe bottom. The float trailer in the first video was the trailer involved in the incident; the second video showed a different trailer.

Whilethe defence witnesses asserted that the machine in the video was the same model as the curb machine involved in the incident, theMinistry of Labour Engineer also observed that the curb machine involved in the incident had five steps rather than four, and had anaccess panel that was not present in the curb machine showed in the videos. Evidence of R. Martellacci, Transcript, June 8, 2017: 28/22-32; 39/22 – 40/2; 41/30 – 42/10; Transcript, June 8, 2017

part 2: 2/12-28;4/10- 6/6; 7/18-29, Transcript, June 14, 2017: 22/10 – 23/17; 24/7-15 Evidence of M. Abskharoun, Transcript, June 14, 2017: 47/7 – 51/20 Evidence of M. Conetta, Transcript, June 14, 2017: 111/4-18; 135/2 – 136/15 Exhibit 25: DVD 1 and 2.

(53) In the first video, Mr. Martellacci assisted the driver by repositioning the piece of wood on the ground between the ramps. Thepiece of wood had not been properly lined up with the offset wheel. Without someone to assist, a transport driver, working on his own,would stop the machine; come down the ladder; look at the placement of the piece of wood; adjust it as necessary; and return to thecontrol panel of the machine. The driver may have to get up and down from the machine a few times to do this. In the video, Mr.Martellacci also gestured to the driver, as a signaler would do. Mr.

Martellacci commented that the driver in the defendant’s videoscould be seen manually tilting the machine, to operate the machine on an angle, to get a better view of the path of travel of the machineas it was travelling on or off the float trailer. Evidence of R. Martellacci, Transcript, June 8, 2017: 31/5-18; 32/1-4; Transcript, June 14, 2017: 25/1 – 26/5; 27/28 – 28/9; 31/19 –32/16 Evidence of G. Vieira, Transcript, June 14, 2017: 76/10-26; 77/15-23; 78/30 – 79/13; 80/25-31 Evidence of M. Conetta, Transcript, June 14, 2017: 115/12-27.

(54) While commenting on the defendant’s videos, the Ministry of Labour Engineer explained the differences in using a ramp versus apiece of wood, as shown in the defendant’s videos. The piece of wood creates a “step”, and not a “ramp”. Using the piece of wood willdecrease the distance that the offset wheel drops, but the machine still drops for some distance. In the video, the entire curb machine tiltsto the driver’s side as it drops. There is very little forgiveness with any tilting, because the tilting occurs near the midpoint of themachine.

With a ramp, there is no “drop” whatsoever, as the offset wheel would maintain contact with the surface of the ramp as ittravels onto or off the float trailer. The ramps are inclined at an angle which will provide a smooth path of travel. Evidence of M. Abskharoun, Transcript, June 14, 2017: 39/7 – 41/26; 43/25 – 45/6; 57/20 – 58/3. Evidence of M. Abskharoun, Transcript, June 14, 2017: 41/26 – 42/15; 45/11-27; 52/4-25.

PART III: PROSECUTION ATRICULATED ISSUES ANDTHE LAW The Law

Interpretation

(56) The Occupational Health and Safety Act is public welfare legislation. It should be read liberally and broadly: 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. Narrower technical

interpretations that would interfere with or frustrate the attainmentof the Legislature’s public welfare objectives are to be avoided. Ontario (Ministry of Labour) v. Hamilton (City), (ON CA), [2002] OJ No. 283 (CA) at para 16, cited in R. v. PrinceMetal Products Ltd, [2011] OJ No. 6450 (CJ) at para 42 Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc. 2010 ONSC 2013 , [2010] OJ No. 1504 (SCJ) at paras. 20-24,

leave to appeal refused 2011 ONCA 13 , [2011] OJ No. 24 (CA).

(57) The Court of Appeal for Ontario, in Ontario (Ministry of Labour) v. Dofasco Inc., stated: . . . as was noted by Laskin J.A. in his decision granting leave to appeal in this case, “workplace safety regulations are not designed justfor the prudent worker. They are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or areeven reckless.” In our view, this principle also extends to deliberate acts of employees while performing their work. Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769 , [2007] OJ No. 4339 (CA) at para. 24, leave to appeal refused[2008] S.C.C.A. No. 24. Duties of an Employer

(58) The onus is on employers to ensure the protection of their workers through the enforcement of the OHSA and the relatedRegulations. As the Court of Appeal has said when considering the duties of an employer under the OHSA: An “employer” is obliged by s. 14(1) [now 25(1) (c)] to “ensure” that the “measures and procedures” prescribed by the Regulations arecarried out in the “workplace”. The relevant definition of “ensure” in the Shorter Oxford English Dictionary (3rd ed.) is “make certain”.

Section 14(1), therefore, puts an “employer” virtually in the position of an insurer who must make certain that the prescribed regulationsfor safety in the workplace have been complied with before work is undertaken by either employees or independent contractors. R. v. Wyssen, (ON CA), [1992] O.J. No. 1917 (C.A.) at para. 14. Strict Liability

(59) Offences contrary to the Occupational Health and Safety Act are strict liability offences. The Crown must prove the actus reusbeyond a reasonable doubt. There is no mens rea component. The defendant may establish due diligence by proving, on a balance ofprobabilities, that it took all reasonable steps or was reasonably mistaken as to the facts: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facieimports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.

This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may properly be called offences of strict liability. R. v. Sault Ste. Marie (City), [1978] 2 SCJ No. 59 at p.19 R. v. Timminco Ltd., (ON CA), [2001] OJ No. 1443 (CA) at para.22-24, 26-27. Actus Reus

(60) In a prosecution under the Occupational Health and Safety Act, the failings of the manager or supervisor are legally borne by theemployer: In a prosecution of an offence under any provision of this Act, any act or neglect on the part of any manager, agent, representative,officer, director or supervisor of the accused, whether a corporation or not, shall be the act or neglect of the accused. Occupational Health and Safety Act, s.66(4).

(61) A hazard can include a chance event, such as an accident. The doing of the prohibited act raises the presumption of the commission

of the offence, whether it was caused by accident, negligence, recklessness or wilful neglect. It does not matter whether the employerhad been satisfied, prior to the accident, that the measures and procedures in the workplace were safe, or that no similar accident hadoccurred before. R. v. Prince Metal Products Ltd., supra, at para.47, 49.

(62) Worker misconduct does not go to the actus reus of the offence, even when the worker deliberately disregarded safety training. Ontario (Ministry of Labour) v. Dofasco Inc., supra at para.22.

(63) The Crown is required only to prove the elements of the offence: there is no requirement to prove how the accident happened. The trial court is not obliged to make a finding as to how the accident happened, merely whether or not the Crown has proved the actusreus beyond a reasonable doubt. R. v. Prince Metal Products Ltd., supra, at para. 52, 54. Due Diligence

(64) The defence of due diligence has been interpreted to place a heavy burden on employers to take every reasonable precaution toensure the protection of workers. Due diligence requires that employers take active steps to protect the safety of their workers bycreating procedures and systems to implement the requirements of the OHSA and, further, by ensuring the effective operation of thoseprocedures and systems through their supervisors.

The employer’s obligation to protect the safety of its workers extends to theprotection of negligent, careless, or even reckless workers who deliberately ignore company procedures. Ontario (Ministry of Labour) v. Dofasco Inc., supra, at paras. 21-27. R. v. Stelco Inc., [1989] OJ No. 3122 (OJ) at para. 27.

(65) Due diligence must relate to the particular breach of the legislation. General health and safety training does not establish duediligence regarding the specific hazard in issue. R. v. Prince Metal Products Ltd., supra at para. 41, 63, 64 R. v. Rio Algom Ltd., (ON CA), [1988] OJ No. 1810 (CA) at para. 31.

(66) An employer may not have exercised due diligence where there is a culture of workers being permitted to exercise their owndiscretion in following safety practices, even where the employer has the appropriate safety policies, equipment, training, and regularinstruction and reminders to workers. R. v. Moran Mining and Tunnelling Ltd..,unreported reasons for judgment of The Honourable Justice W. F. Fitzgerald on June 30, 2004(CJ);aff’d. [2006] OJ No. 2254 (SCJ) at paras. 19-29, 36 Ontario (Ministry of Labour) v. Reid & DeLeye Contractors Ltd., 2011 ONCJ 472 , [2011] OJ No. 3817 (CJ) at paras. 51, 72.

(67) Where the facts are known to the employer, and the employer was mistaken in believing there was no danger, this cannot make outthe defence of mistake of fact. As explained in R. v. Rio Algom Ltd., the facts were known to them. They simply failed to consider thepotential danger to employees which might result from the correct facts which were known to them or were mistaken as to the harmwhich might be suffered by employees as a result of the facts concerning the existence of which there was no mistaken belief on the partof the respondent’s supervisory personally. R. v. Rio Algom Ltd., supra at para. 20.

(68) With respect to the relationship between due diligence and foreseeability, the Court of Appeal for Ontario held in R. v. Rio AlgomLtd., the test which should have been applied is not whether a reasonable man in the circumstances would have foreseen the accidenthappening in the way that it did happen, but rather whether a reasonable man would have foreseen that an “overswing” of the gate couldbe dangerous in the circumstances and if so whether the respondent in this case had proven it was not negligent in failing to check theextent of overswing in order to consider and determine whether it created in any way a potential source of danger to employees and in

failing to take corrective action to remove the source of danger. R. v. Rio Algom Ltd., supra at para. 25.

(69) The defendant is not required to establish the precise cause of the incident. However, if it can be shown how the incident occurred,it may be easier to demonstrate that all reasonable care was taken because this would narrow the issues. Where the defendant has notshown the cause, due diligence may still be available if the defendant proves that it took all reasonable care to avoid any foreseeablecause.

It would be an error in law to find that a defendant established due diligence because it did not violate industry standards, orbecause it was not patently obvious that the defendant did not take all reasonable care. This would effectively place an onus on theCrown to disprove due diligence. R. v. Petro-Canada, (ON CA), [2003] O.J. No. 216 (C.A.). Application of W(D)

(70) The principles of R. v. W(

D) do not apply in evaluation of a due diligence offence [sic]. This is because the defendant has apositive burden of proving due diligence, on a balance of probabilities. R. v. Prince Metal Products Ltd., supra at para. 50.

(71) Mr. Pinto was killed when the defendant assigned him to move a piece of heavy equipment without providing him with a safemethod of doing so. Most fundamentally, the defendant assigned him a float trailer that did not provide a surface for the offset wheel totravel along, causing the curb machine to tip towards the driver’s side. This precarious movement of the curb machine is evident even inthe defendant’s video, marked as Exhibit 25.

(72) The actus reus has been made out. The relevant evidence is not in dispute. The defendant was Mr. Pinto’s employer; the date andlocation of the event have been established; and the event took place on a construction project. There can be no doubt that Mr. Pinto wasendangered – in fact, fatally injured -- by the movement of the curb machine. This imports the offence. The cause of the movement isnot an element of the offence.

(73) The evidence belies the defendant’s assertion that it did everything reasonably possible to avoid risk or danger to its transportdrivers. (Because there was no set

schedule for filing written submissions, beyond a deadline of October 30, 2017, the Crown’ssubmissions are being prepared without having received the defendant’s written submissions and therefore without knowing preciselywhat will be argued by the defendant.) The defendant took no steps whatsoever to provide a sloped surface that would avoid the tippingmotion that occurs when the offset wheel drops from the trailer onto the piece of wood on the ground (if, indeed, that piece of wood isproperly placed, if the wheel hits the wood squarely, if the wood itself does not move).

(74) Despite Mr. Martellacci’s evidence that the piece of wood “acts as a ramp”, placing a small rectangular block of wood in a 30 inchgap, to catch the offset wheel of a large piece of heavy equipment, is not providing a ramp. Whether or not Mr. Pinto used a piece ofwood on the day of the event (something which cannot be conclusively determined), this method of unloading the curb machine isinadequate. The defendant has not established that it took every reasonable step to avoid a curb machine tipping over while beingunloaded where it did not take any steps whatsoever to provide a surface for all four wheels to roll along, so the machine could remainstable.

(75) If Mr. Pinto did not use a piece of wood in the gap at the time of the incident, this does not assist the defendant. Firstly, as above,expecting workers to use a piece of wood instead of a ramp (whether part of the trailer, or inserted into the gap), is not objectivelyreasonable, even if subjectively believed by the defendant to be adequate for worker safety. Secondly, if the use of the wood was criticalto ensuring worker safety – as testified to by the defendant’s witnesses – there was no evidence that this was impressed on Mr. Pinto bythe defendant, or that supervision ensured its use by the drivers.

(76) Additionally, the defendant did not ensure that Mr. Pinto was aware of the maximum safe elevation of the machine, or how thecurb machine could clear the ramp when the wood form was attached to the underside of the curb machine, while maintaining themachine at a safe elevation. The drivers were left to use their own discretion and judgment. They were unaware that the manual statedthat the curb machine should be elevated no more than 12 inches. There was no information or instruction provided about how toaccount for the added height of the wood form, which was sometimes present, and sometimes not.

(77) Also, while other workers learned about the “auto” and “manual” settings of the machine through experience, or were otherwise self-taught, the defendant had a positive obligation to ensure through training that Mr. Pinto was aware of this critical information and to ensure that he followed this training. The defendant did not do everything reasonably possible to prevent the curb machine from tipping during the unloading process, when the defendant did not take any steps to ensure that Mr. Pinto knew how the controls worked, and their potential effect on the movement of the machine.

(78) There is no evidence that the mechanical condition of the curb machine played any role in the tragedy that occurred on May 25, 2013. It would be sheer speculation to theorize that the condition of the machine contributed in any way. The evidence, in fact, suggests otherwise: the machine had been recently inspected, and its operator had experienced no malfunction with the sensors or the auto- levelers.

In any event, the defendant called no evidence that it took any steps to ensure that it transported machines that were properly maintained, or required its customers to confirm that their machines would not endanger the defendant’s workers. There is no evidence that would support a due diligence defence on this issue.

(79) The defendant seriously failed in its duties as an employer by relying solely on workers’ previous experience and vetting during the hiring process. There was no meaningful orientation or training. There was a written procedure on loading and unloading that was entirely silent on the hazard that resulting in Mr. Pinto’s death.

(80) The Crown does not have the responsibility of disproving due diligence . To establish a defence of due diligence , the defendant must prove, on a balance of probabilities, that it took every reasonable step to avoid the specific hazard of a curb machine tipping while being moved from a float trailer. Evidence of general safety training does not assist an employer in establishing due diligence : the due diligence evidence must relate directly to the offence charged, and not any broader notion of acting reasonably.

(81) The evidence in this case, even if taking the defence evidence at its highest, does not offer due diligence that would meet the legal standard. The defendant did not take active steps to ensure that a curb machine was moved in a safe manner. It provided neither the necessary equipment (a ramp or equivalent), nor adequate information and training (regarding the machine’s operation with respect to elevation and controls), and took no steps to ensure, by supervision or otherwise, that safety procedures for unloading curb machines had been implemented, were effective, and were being followed by its workers. The defendant should be found guilty.

(82) In the Crown’s submission, a conviction should be entered. Defendant’s position (from defence Factum) (para. 83 to para. 220 below): Overview:

(83) It is respectfully submitted that the Crown has failed to prove each and every one of the essential elements of the Charge against Cobra Float beyond a reasonable doubt. The actus reus of the alleged offence has not been proven beyond a reasonable doubt.

(84) It is respectfully submitted that Cobra Float has presented evidence that on the balance of probabilities it has provided every reasonable precaution to prevent the incident. Cobra's policies, conduct and planning in the context of the incident present a defence of due diligence on the balance of probabilities. (

a) Cobra cannot be expected to take measures to avoid all possible causes of this incident, such as human error and/or mechanical failure - which are beyond Cobra's control. (

b) It is submitted that Cobra Float took all reasonable care to avoid any foreseeable cause of this incident. Actus Reus

(85) The case of R. v. City of Sault Ste. Marie (City) (1978), was quoted in R.v. Timminco Ltd. at Paragraph 54 : "The actual definition of the defence is found in the judgment of Dickson J. at page 374: The defence will be available (1) if the accused reasonably believed in a mistaken set of facts which if true would render the act or omission innocent, or (2) if he took all reasonable steps to avoid the particular event."

(86) The Crown must prove the actus reus beyond a reasonable doubt on the charge before the Defence is called upon to establish due diligence on a balance of probabilities.

(87) It is respectfully submitted that the Crown has failed to prove each and every one of the essential elements of the charge against Cobra Float beyond a reasonable doubt. The actus reus of the alleged offence has not been proven beyond a reasonable doubt.

(88) Cobra Float is charged with, " Failing, as an employer to ensure that the measures and procedures prescribed in section 37(1) of Ontario Regulation 213/91 were carried out in a workplace located at or near James Potter Road, West of Credit View Road, Brampton, contrary to s.25(1)(

c) of the OHSA as amended. Particulars : the curb machine was moved at a project in a manner that endangered a worker. A worker, Luis Pinto, was killed contrary to the Occupational Health and Safety Act s.25(1) (c)".

(89) Ontario Regulation 213/91 at s.37(1) provides that " equipment at a project shall be stored and moved in a manner that does not endanger a worker". (90) S.25(1) (

c) of the OHSA provides that an employer shall ensure that the measures and procedures prescribed are carried out in the workplace.

(91) The charge against Cobra Float, as particularized, requires that the Crown adduce evidence of the endangerment that is alleged with respect to Luis Pinto's movement of the curb machine on May 25, 2013.

(92) It is submitted that the Crown has failed to adduce evidence of acts or omissions on the part of Cobra Float that would provide such evidence.

(93) There is no evidence of any one actually having witnessed the movement of the curb machine in order to be able to explain how it tipped over onto Luis Pinto.

(94) By way of

summary, on the actus reus aspect of the charge against Cobra Float, it is submitted that the Crown has failed to prove the actus reus beyond a reasonable doubt. Therefore, it is not incumbent upon the Defendant to mount a defence of due diligence. The Crown's Case (from Defence perspective) Evidence of Crown Witness Karim Kassam, Inspector for the Ministry of Labour

(95) The following is a detailed

summary of his evidence: Examination in Chief

(

a) from the time of the incident to the time that the machine is removed from the site, it was at all times kept secure (Transcript October 12, 2016, Page 21, Line 20); (

b) the ground was fine, it was firm there were no issues with it (Transcript Page 30, Line (1); (

c) there is no witness to see what happened (Transcript Page 33, Line 30) Cross-Examination (

d) he had no prior experience inspecting trailers of this nature (Transcript Page 56, Line (26); (

e) he drew the conclusion that the Kenworth T800 truck with the Jaycee Trailer which were the subject of this incident were equipment suitable for the task of moving equipment such as the curb machine and the loading and unloading of that same machine - the general transport of equipment from one site to another - (Transcript Page 57, Line 3). (

f) he has never witnessed the demonstration of the loading and unloading of a curb machine on a float such as this; (Transcript Page 61, Line 21); (

g) his only knowledge of that process was acquired during the course of his investigation of this incident (Transcript Page 61, Line 28); (

h) when suggested to him that in fact Mr. Pinto had moved the same machine a total of 27 times - his reply, that it was not within his knowledge (Transcript Page 63, Line 10); (

i) When he was talking to Mr. Vitor Vieira (the operator of the machine) it was mentioned that it was self-levelling when set on auto; (

j) When the machine was put upright, it was in a raised position between 23 and 24 inches off the ground - almost a 2 foot difference from where it would be when it is in operation; (Transcript Page 66, Line 12). (

k) The levelling controls were in the automatic levelling position rather than manual; (Transcript Page 67, Line 1) . He did not investigate the impact of those two factors (the raised position and the levelling switch set at automatic levelling) in the process of loading/unloading the curb machine (Transcript Page 67, Line 5). (

l) When asked about the procedure for loading and unloading the curb machine - Mr. Vieira told him that when he had loaded and unloaded, he had put a wooden block to assist him loading and unloading; because the ramps of the trailer were wider apart than the wheels of the curb machine, the function of the wooden block was to assist in the unloading of the curb machine; (Transcript Page 69, Line 3) ; (

m) The operator Mr. Vieira explained that the reason why he uses that wooden block is because the offset wheel does not line up with the ramp on the left side of the float (Transcript Page 71, Line 25); (

n) The wooden block is inserted in the void between the two ramps immediately to the right of the left ramp so that the offset wheel has a surface to climb up parallel to the other wheel (Transcript Page 72, Line 5). (

o) Besides Mr. Vieira, he heard this from others too (Transcript Page 72, Line 13).

(

p) At the scene of the incident, he observed a wooden block sitting on the trailer in the cavity in the middle of the two ramps; equipment that was available to the operator (Transcript Page 73, Line 26); (

q) When questioned during the video demonstration of the tractor trailer and float being driven onto the construction site (Exhibit "5"), the curb machine is in a relatively low position on the float (Transcript Page 75, Line 21 ). (

r) The curb machine was driven onto the project on the float at its low level setting (Transcript Page 75, Line 31). (

s) Mr. Vieira told him that when he unloaded, the few times that he has unloaded, he always has it in a low position (Transcript Page 75, Line 25); (

t) Referring to Photograph No. 8 ( Exhibit 4 from the Crown Disclosure Brief ) depicting the wheels of the curb machine - the wheel on the left is lower in its position than the wheel on the right which would have the effect of tilting the level of the machine to the right; (Transcript Page 81, Line 5). (

u) The configuration of tire marks or scuffs (on the steel ramp

section of the trailer) are equally consistent with that mark being made when the curb machine was loaded onto the float; they could have been made from loading or offloading (Transcript Page 86, Line 29); (

v) There is no block in the void between the ramps; there is nothing to assist in unloading the machine (Transcript Page 85, Line 9); (w) " I don't know how he did it, I wasn't there " (Transcript Page 86, Line 5); (x) " I don't unload and ship equipment, so, no I am not going to start conjecting [sic] as to how the machine was loaded or how it wasn't loaded", (Transcript Page 86, Line 10) ; (

y) He didn't see this machine in motion at all; (Transcript Page 86, Line 1); (

z) At Photographs 20, 21 and 22 ( Exhibit 4) it appears that the machine is tilted; the machine is tilted to the right; (Transcript Page 87, Line 4) ; (aa) " Can't say whether that resulted from the action of the operator or as a result of the actual incident itself - there is no way you can determine that" (Transcript Page 87, Line 12); (bb) No one tampered with the controls in order to change the configuration of the machine.

It could have been as a result of the actions of the operator Luis Pinto (Transcript Page 87, Line 18); (cc) He had no discussions with any representative of Cobra with regard to loading and unloading procedures and how they were implemented (Transcript Page 94, Line 11 - referring to Exhibit 15 Cobra Float Service Inc. - Transporting of Heavy Equipment, Loading/Unloading Procedures); (dd) He made no investigation into Luis Pinto's history of employment; he is not aware of what experience or training Mr. Pinto may have had with prior employers (Transcript Page 98, Line 18);

(ee) The conditions which he observed: (1) the machine roughly 23 inches above ground level; (2) the fact that the levelling control was on "auto" rather than "manual"; (3) the fact that the machine would have been partly on a slope as soon as it started riding a ramp - those conditions could contribute to or cause tipping of the machine (Transcript Page 100, Line 29); (ff) " I don't know if Mr.

Pinto adjusted the wheels because he realized that the one wheel was offset from the middle of the ramp and he forgot his blocks...I don't know why the machine was that high" (Transcript Page 101, Line 15); (gg) The missing block would be a significant factor (Transcript Page 102, Line 2); (hh) "The main thing is...what's missing between these ramps?" (Transcript Page 102, Line 10); Re-examination of Inspector Kassam by Mr. Wilson (ii) Regarding the suitability of the trailer f or the task: (jj) (" the equipment, the float and the tractor-trailer, so the tractor trailer

part is designed to transport heavy equipment, excavators, curb machines, whatever, from one site to another. So yes, that was designed to transport equipment, so it was suitable for the task" (Transcript Page 104, Line 5); (kk) " If it was done the proper way, yes, that float truck could have unloaded that curb machine the right way" ; the equipment would have been suitable for the offloading task had the blocking or additional ramp been provided (Transcript Page 104, Line 19).

(96) Mr. Kassam confirmed there were no witnesses to the incident on May 25, 2013. He himself has only seen the curb machine moved on one occasion.

(97) By way of

summary: Under cross-examination he stated he had no prior experience inspecting the subject tractor trailer and float. He was asked whether the Kenworth Tractor and JC Trailer were suitable equipment for the task of loading and unloading equipment such as the curb machine; his response was that if the machine is moved properly, the tractor trailer is suitable for the task. He indicated he has not witnessed the procedure for the curb machine being loaded onto the trailer.

(98) When counsel suggested to Mr. Kassam that in fact Mr. Pinto had moved the subject curb machine a total of 27 times - he stated that this was not within his knowledge. He stated that the height of the curb machine when inspected by him during his investigation of the scene of the incident indicated that it was in the high position - approximately 23 or 24 inches above ground level. As for the levelling controls, which can be either on "auto" or "manual" levelling, he indicated that the switches were set to automatic levelling.

He did not investigate the impact of those factors (1) the elevated height of the machine; (2) the levelling switches set to auto and (3) the machine would have been partly on a slope - on the movement of the curb machine. When he was asked about the function of the wooden block for loading and unloading, he responded that it serves to assist unloading the machine; that he was told by Mr. Vieira, the operator of the curb machine, that the block serves as a type of ramp for the off-set wheel which would otherwise go between the ramps of the trailer; that he was told that block is always used for that purpose.

He confirmed that the subject trailer had the wooden block available for Mr. Pinto's use; that in his inspection of the scene of the incident, he did not observe the block between the ramps of the trailer.

(99) He stated that no one tampered with the controls of the curb machine; that the settings on the control panel (levelling switches set to automatic) could have been the result of the actions of Luis Pinto.

(100) Mr. Kassam agreed with defence counsel's suggestion that it is a fair inference that the conditions which he observed on the curb machine - specifically, (1) the elevation, (2) the levelling controls being set at "auto levelling" and (3) the missing wooden block for the

off-set wheel could be factors causing or contributing to the tipping of the curb machine.

(101) Under redirect examination by Crown counsel, Mr. Kassam repeated that the subject trailer was designed to transport equipment such as the curb machine; that if it was done in the proper manner, the trailer was suitable for the offloading task had the blocking been provided. Evidence of Mehdat Abskharoun The Voir Dire

(102) The Court ruled that, "In the Court's opinion he is able to discharge his duty to the Court (to give evidence and impartial opinion evidence) despite his self-proclaimed limitations with respect to the mechanics and machinery, in which the Court will factor into its analysis when assigning proper weight into its testimony" (Transcript October 13, 2016, Page 13, Line 8).

" Despite the fact that expert is employed by the MOL, and has limited experience with curb machinery, the court will accept him as an expert to provide opinion evidence as to the physics, science and other engineering...factors involved in the tipping of such heavy machinery.

Be assured that the Court will be vigilant and mindful of the weighting that it will be assigning to such testimony and to the fact that it is opinion evidence based on the application of general principles and circumstantial evidence gathered after the accident to provide inference value to the Court as opposed to being able to provide incontrovertible eyewitness, or scientific testimony of what actually occurred on that date, time and place beyond a reasonable doubt. ” (Transcript October 13, 2016, Page 18, Line 16). Examination in Chief

(103) Referring to the Photograph No. 7 view (showing the curb machine's rear tires at Page 11 of the his report - (Exhibit 20), the offset rear wheel is extended 6.5 inches beyond the plain of the other rear tire. 6.5 inches difference between the right hand rear wheel and two front wheels (Transcript Page 28, Line 5).

(104) In reference to the elevation controls - the front left elevation, left rear elevation, right side elevation switches were all on auto (Transcript Page 34, Line 12).

(105) In reference to the tire marks observed on top of chassis rail, the left hand side chassis rail - there is no way to tell when those tire marks on the top of the chassis rail were made (Transcript Page 35, Line 12). He states, " Maybe that tire went on that chassis rail, that's maybe - maybe it was just a mark from a previous loading or unloading; there is no way to tell " (Transcript Page 38, Line 2).

(106) When asked whether there were any wood or other objects that could have been used to block up that centre portion between the ramps, he answered there were pieces of wood right in the middle between the two chassis rails on the trailer (Transcript Page 38, Line 8). On the ground, down between the rails he did not see any (Transcript Page 38, Line 20).

(107) When asked about the height of the chassis of the curb machine, he stated it was between 22.44 inches to 23.23 inches (Transcript Page 39, Line 5 ). He explained the significance of the centre of gravity to the mechanism of the collapse - to keep any object stable, the centre of gravity has to come in between the pivot points; The centre of gravity is moving; once that line crosses the outer pivot point, it will tip (Transcript Page 40, Line 8).

(108) When asked, how does the height of the machine, if at all, play into the calculus of the centre of gravity, his response - It's the passing of the pivot point by the centre of gravity line that makes the unstable condition; the higher you go the less angle it needs to tip (Transcript Page 42, Line 10).

(109) When questioned, what effect would the elevation of the machine at 23 inches have on the centre of gravity of the curb machine,

his response " It would make the angle required to tip the machine much less" (Transcript Page 48, Line 20). Under Cross-Examination

(110) When it was suggested that in order to load and unload the machine, all three levelling toggles should be on manual, he responded that it makes sense (Transcript Page 56, Line 26).

(111) He did not actually witness the on-loading or unloading of a curb machine on a trailer; he did not undertake that particular due diligence as part of his investigation (Transcript Page 52, Line 25).

(112) When asked what happens when the curb machine is moving down the ramps with the toggles on auto level, he answered that the machine will try to level itself if there is any difference in level; the machine will move because of the difference between the front and the rear (Transcript Page 57, Line 10).

(113) At this point, Defence counsel suggests what may have occurred on May 25, 2013; the following is an excerpt (starting at Page 59): Question: " So if in fact, Mr.

Pinto starts off with the machine level at 12 inches, starts crawling down the slope, changes the slope, changes the level of the machine and all of the sudden now those auto-levelling mechanisms of the machine are going to kick in and start raising the machine aren't they?...Number 1, the machine is going to potentially dance, correct?" Answer: " Yes it will..." Question: " And the machine will raise its level won't it?" Expert" " That's correct ". Question: " Because it is on auto rather than manual ?" Answer: " Correct" .

Question: " Is that going to increase the risk of this tipping ?" Answer: " A hundred percent ."

(114) As to the positioning of the rear wheels of the curb machine on the trailer defence counsel suggests that, " Well I put it to you that in fact both those wheels were sitting almost on an equal plane because of the fact that the offset wheel is sitting on those plates which appear between the two rails just before the end of the trailer where the ramp begins. Is that a valid suggestion that I am putting to you?" Answer, "Again, it's a possible scenario but not only scenario yes" (Transcript Page 61, Line 25).

(115) Regarding the wooden block, defence counsel suggests that, "...in order for Mr. Pinto to have gotten the machine sitting on the trailer the way in which you describe it at Figure 4, the only way that could have happened was for him to use a wooden block at the offset wheel when he loaded it onto the trailer" . The answer, "I call it a ramp, yes" (Transcript Page 63, Line 26).

(116) He confirmed that in fact the trailer had such a wooden block (Transcript Page 64, Line 5). He pointed out the wooden block in Photograph 5 at Page 196 of his Engineering Report ( Exhibit 20 ).

(117) As to when and how the tire marks on the rails of the trailer were made - he stated, tire marks are very hard to estimate when they are made. (Transcript Page 66, Line 5) .

(118) Defence counsel put another theory to the expert witness with regard to how the tire marks were made; Question: " The tire mark on the rail, if for whatever reason you don't know the motive here, the operator tried to avoid the need of putting that block there by riding the rail, wouldn't that explain the tire mark on the rail by the offset wheel consistent with what shows up on the photograph?" (referring to Page 17 of his report, Exhibit 20) . His reply, " That could be a possible scenario " (Transcript Page 68, Line 14).

(119) Regarding the suitability of the trailer, Question: " I put it to you that the only way the goose neck trailer is going to work is for the ramps to be in this configuration; that you can't have a middle ramp, otherwise there is no way of hooking the trailer to the goose neck that is part of the tractor that pulls it ". Answer, " that's right ". But when asked if he has ever seen such a trailer that has a ramp that extends the full width of the trailer, in practice, his answer is " no ".

When asked whether he made any inquiries as to whether such a trailer is being used by any of the trades in the Province of Ontario he did not make that inquiry. When asked where that trailer is available, he did not know (Transcript Page 71, Line 9).

(120) Regarding the mechanical condition of the curb machine, he did not examine any reports of the mechanical condition of the curb machine; he did not know when the machine was last inspected (Transcript Page 75, Line 10).

(121) When asked what did he do by way of due diligence to rule out the possibility of mechanical failure, he replied " I did not do any mechanical testing on it myself ". He made no independent inquiry as to the possibility of mechanical failure (Transcript Page 76, Line 10).

(122) He stated, " It's construction equipment, its subject to a lot of abuse " (Transcript Page 77, Line 15). Evidence of Medhat Abskaroon

(123) Recalled as witness following Mr. Martellacci's testimony; under cross-examination (Transcript, June 14, 2017, Page 57).

(124) He stated that he never did an analysis of loading or unloading of a curb machine similar to what was done on the demonstration video ( Exhibit 25 ). (Transcript Page 57, Line 20).

(125) It is the first time that he has seen the loading or offloading using the type of trailer with this particular configuration of ramps (observing the video Exhibit 25, Transcript Page 57, Line 30). Little Weight to be Accorded to Mr. Abskharoun's Evidence

(126) The Crown presented Mehdat Abskharoun to provide expert evidence to the Court about the issues being litigated. The Defence has challenged the expertise of this witness to give evidence with regard to the design, function and movement of the curb machine. It was submitted by Defence counsel that it is up to the Court to assess the weight of the evidence.

(127) When cross-examined on his qualifications as an expert, it came out that he is a civil and structural engineer, not a mechanical engineer; that he is not an expert as to the kinetic factors in the moving of heavy equipment - in the mechanics of movement of heavy equipment. He admitted that he never witnessed the loading or offloading of a curb machine; that his evidence with regard to the factors at play in the movement of the machine are based upon his observations on the day that he attended to inspect the site. By reason of his lack of expertise in mechanical engineering, it is submitted that Mr. Abskharoun's evidence should be accorded little or no probative value.

(128) With regard to his objectivity as a witness, he indicated that he has been employed by the Ministry of Labour since June of 2010; that any evidence he has given in a courtroom has been on behalf of the Ministry. He indicated that he has testified for the Ministry at two inquests and one trial. He stated that he has never given any opinions on behalf of a Defendant.

(129) When asked his opinion as to the adequacy of the trailer, his evidence was that it was not adequate for loading and unloading the curb machine - the solution is one ramp across the entire width of the. It is submitted that this evidence is contradictory to the evidence of the inspector Kassam. Furthermore, under cross-examination, Mr. Abskharoun indicated that he has only seen such a configuration (one ramp across the entire width of the trailer) on the internet. It is submitted that his opinion in this regard is to be given little or no weight.

His opinion fails to deal with the reality that the ramps are configured as two separate ramps because the trailer needs to connect to the goose neck connection of the tractor. It is submitted that the Crown has failed to present evidence as to the availability or actual use of such as trailer as described by Mr. Abskharoun in the workplace. Evidence of Vitor Vieira

(130) The Crown did not ask for any opinion evidence; rather it was relying on his experience (Transcript October 13, 2016, Page 85, Line 5).

(131) Regarding his experience moving the curb machine, he has participated in loading and onloading a couple o

[…]