Her Majesty the Queen - v. -, 2019 SKPC 15

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 15 Date: February 11, 2019 Information: 90215243 Location: Saskatoon _____________________________________________________________________ Between: Her Majesty the Queen - and - Norred Construction Ltd. Appearing: S. Bains For the Crown N. Stooshinoff, QC For the Defendant ___ JUDGMENT N.D. CROOKS , J [ 1 ] Norred Construction Ltd. (Norred), a family owned business operated by Mr.

Norman Reddekopp, is charged with two violations of The Saskatchewan Employment Act, SS 2013, c S-15.1 [ Act ] and The Occupational Health and Safety Regulations, 1996, c O-1.1 Reg 1 [ Regulations ] . The charges read as follows: On or about the 3 rd day of August 2017 at or near Saskatoon, Saskatchewan, did: 1. Fail to ensure that any opening or hole in a floor, roof or other work surface into which a worker could step or fall is covered with a

securely installed covering that is capable of supporting a load of 360 kilograms per square metre and that is provided with a warning sign or permanent marking clearly indicating the nature of the hazard as required by Section 124(1)(

a) of The Occupational Health and Safety Regulations, 1996 and did thereby cause serious injury to Keith Giesbrecht contrary to

Section 3 - 78 (

g) and 3 - 79 of The Saskatchewan Employment Act . 2. Fail to ensure that any opening or hole in a floor, roof or other work surface into which a worker could step or fall is provided with a guardrail and toeboard as required by Section 124(1)(

b) of The Occupational Health and Safety Regulations, 1996 , and did thereby cause serious injury to Keith Giesbrecht contrary to

Section 3 - 78 (

g) and 3 - 79 of The Saskatchewan Employment Act . [ 2 ] At trial on January 15 and 16, 2019, three witnesses testified for the Crown and two witnesses for the defence. The facts relating to the injury to Mr. Keith Giesbrecht are straightforward and largely undisputed. On August 3, 2017, Mr. Reddekopp and Mr. Giesbrecht were working at a residential construction site at 470 Pichler Crescent. Shortly before 1:00 p.m., Mr. Giesbrecht fell into the basement. Mr. Reddekopp called 911 and Constable Chad Seidel attended the scene. In order to remove Mr.

Giesbrecht from the basement, emergency personnel had to use ladders and a conveyer system out of a basement window hole. Mr. Giesbrecht was transported by ambulance and his injuries included fractured hips, a fractured pelvis, seven broken ribs and a broken shoulder. He required surgery on his arm as well as a steel plate due to the extent of the injury. He was bedridden in hospital for three months following this incident. [ 3 ] Counsel for Norred suggested it is unknown where Mr. Giesbrecht fell from and as such, it is unknown whether a guardrail may not have prevented the injury. From his testimony, Mr.

Giesbrecht recalled that he was working on the second floor and had just finished building a

section of wall. From the photos in evidence, this

section was lying flat on the second floor at the time. The last thing he remembered is standing up and then he recalls staring up at the sky and looking up at the EMT’s. Mr. Reddekopp did not witness what happened to Mr. Giesbrecht, but did see him on the basement floor and called for help. A ladder between the main floor and the landing was bent from Mr. Giesbrecht’s fall. The only feasible explanation is that Mr. Giesbrecht hit the ladder on his way down. From the evidence, including Mr.

Giesbrecht’s testimony, the extent of his injuries and the damage to the ladder, I am satisfied that he fell from the second floor and that this fall was approximately 20 feet. [ 4 ] If I am incorrect that this fall was 20 feet, I would still determine that the distance of the fall was at a minimum fourteen and a half feet as in photo 15 of Exhibit P-1, which still exceeds the distance contemplated in the legislation. The damage to the ladder in photo 5 of Exhibit P-1 confirms that Mr. Giesbrecht fell from the platform between the first and second floor. [ 5 ] The issues in this case are: 1.

Has the Crown proven the actus reus of section 124(1)(

a) and 124(1)(

b) of The Occupational Health and Safety Regulations, 1996 ? 2. If so, has Norred established a defence of due diligence:

a) in relation to installing a cover for the hole?

b) in relation to installing a guardrail and toeboard? [ 6 ] Occupational health and safety offences are strict liability offences. Accordingly, the onus is on the Crown to prove the actus reus beyond a reasonable doubt. Once the actus reus has been established, the burden shifts to the accused to establish on a balance of probabilities the defence of due diligence. 1. The Actus Reus [ 7 ] The allegations against Norred arise from

section 124 of the Regulations which states: 124

(1) An employer, contractor or owner shall ensure that any opening or hole in a floor, roof or other work surface into which a worker could step or fall is: (

a) covered with a securely installed covering that is capable of supporting a load of 360 kilograms per square metre and that is provided with a warning sign or permanent marking clearly indicating the nature of the hazard; or

(

b) provided with a guardrail and a toeboard.

(2) Where the covering or guardrail and toeboard mentioned in subsection (1) or any part of the guardrail or toeboard is removed for any reason, an employer, contractor or owner shall immediately provide an effective alternative means of protection. [ 8 ] The wording under

section 124 of the Act is specific that the obligations fall to “an employer, contractor or owner”. The distinction as to whether Norred was on site in the capacity of an employer or a contractor does not alleviate his obligations with respect to ensuring safety.

Under either role, he had an obligation to ensure that any “opening or hole in a floor, roof or other work surface into which a worker could step or fall” was appropriately covered or that there was a guardrail and toeboard in place. [ 9 ] The Regulations are clear that in the capacity of either an employer or a contractor, Norred had an obligation to ensure that any opening in a floor or work surface into which a worker could step or fall is either covered appropriately or provided with a guardrail and a toeboard. Mr. Reddekopp and Mr.

Giesbrecht both confirmed that these steps were not taken after the project continued on the second floor. Occupational Health and Safety Officer Chad Parenteau also provided observations from his attendance and investigation at the construction site confirming these steps were not taken. The Crown submitted as evidence photos of the construction site and it is clear that neither a covering nor guardrails were installed. [ 10 ] However, based on the wording of the charges, it is also necessary to determine whether Mr.

Giesbrecht was a “worker” or a “self-employed person” in assessing whether the Crown has proven the allegations. Was Mr. Giesbrecht a Worker or Self-Employed Person [ 11 ] The relevant

definitions in the Act include: 3-1

(1) In this Part and in

Part IV: . . . (g) “contractor” means a person who, or a partnership or group of persons that, pursuant to one or more contracts: (

i) directs the activities of one or more employers or self-employed persons involved in work at a place of employment; or (ii) subject to subsection (3), retains an employer or self-employed person to perform work at a place of employment; . . . (j) “employer” means, subject to

section 3-29, a person, firm, association or body that has, in connection with the operation of a place of employment, one or more workers in the service of the person, firm, association or body; . . . (bb) “self-employed person” means a person who is engaged in an occupation but is not in the service of an employer; . . . (gg) “worker” means: (

i) an individual, including a supervisor, who is engaged in the service of an employer; or (ii) a member of a prescribed category of individuals; . . .

(3) For the purposes of subclause (1)(g)(ii), a person, partnership or group of persons is considered to be a contractor only if that person, partnership or group of persons knows or ought reasonably to know the provisions of this Part and the regulations made pursuant to this Part respecting the work or the place of employment at the time of retaining the employer or self-employed person to perform work at a place of employment. [ 12 ] Also important are sections of the Act specifically identified in the charges against Norred and I have included the relevant portions of these sections:

3-78 No person shall: . . . (

g) fail to comply with any provision of this Part or any provision of the regulations made pursuant to this Part. 3-79(7) Subject to subsection (9), every person who is guilty of an offence mentioned in

section 3-78 that causes the death of or seriousinjury to a worker is liable on

summary conviction to a fine not exceeding $500,000. [underline added]

(8) If an individual is convicted of an offence mentioned in subsection (7), the convicting judge may, in addition to imposing a fine,order that the convicted individual be imprisoned for a term not exceeding two years.

(9) If a corporation is convicted of an offence mentioned in subsection (7), the convicting judge may order that the convictedcorporation pay a fine not exceeding $1,500,000 if the convicting judge is satisfied that it is appropriate to do so having regard to: (

a) the need to achieve general deterrence; (

b) the number of previous convictions imposed on the convicted corporation; (

c) the number of previous notices of contraventions issued to, and the number of previous compliance undertakings entered into by, theconvicted corporation; and (

d) the degree of responsibility of the convicted corporation, including considering the number of employees employed by the convictedcorporation. [13] At paragraph 45 of R v Viterra, 2017 SKCA 51, Justice Whitmore confirmed on behalf of the Saskatchewan Court of Appealat paragraph 46 that “all the necessary elements of the actus reus, as particularized in the charge, must be proven.” In reaching thatdetermination, the Court noted in part at paragraph 36: 36 […] Therefore, if the charge only contained the general allegation that the employer failed to ensure the health and safety at work ofan employee contrary to s. 124 of the Canada Labour Code, it would appear that proof of an accident would be prima facie proof of theactus reus.

In effect, a broadly-worded charge would lower the Crown's hurdle to clear in proving the actus reus, but the door wouldremain open for the defendant to show, on a balance of probabilities, that it exercised due diligence. On the other hand, a charge that isparticularized presents more elements for the Crown to prove. [14] Both of the current charges specifically allege that Norred “did thereby cause serious injury to Keith Giesbrecht”. Section3-79 of the Act, as referenced in the charge, specifically contemplates a situation of liability “that causes […] serious injury to a worker”in subsection 7. Although

section 3-79 of the Act relates to penalties in the event of conviction, the wording of the charge against Norredappears to incorporate the requirement that Mr. Giesbrecht is found to be a “worker”. [15] The distinction in whether Mr. Giesbrecht is a “worker” or a “self-employed person” was discussed prominently at trial. Based on the

definitions above, this would depend on whether or not he was “in the service of an employer”. Once the role of Mr.Giesbrecht is determined, the role of Norred would follow. If Mr. Giesbrecht is a “worker”, he is in the service of an “employer”. If heis a “self-employed person”, a “contractor” directs his activities. [16] The case of R v Pederson (1999), (SK PC), 185 Sask R 124 (Sask Prov Ct) focused on the distinctionbetween “employer” and “contractor”.

At paragraphs 17 and 18, Judge White stated: 17 Woods and Shatilla were working for wages in the service of Pederson; he was their employer; he directed them to do the work andhe had ultimate responsibility for the worksite and the completion of the project. In my opinion the fact that Woods arranged for hisnephew to work with him does not make Woods an employer since the three men all understood that this would be work for wages in theservice of Mr.

Pederson. 18 This is quite important because the legal obligations imposed by The Occupational Health and Safety Act, 1993, S.S. 1996, c. 0-1.1and the Regulations made thereunder that form the subject-matter of this case would not apply to the defendant if he were merely a"contractor" rather than an "employer"; in that case they would only apply to Woods presuming that a court had determined that he was a"self-employed person" acting as a sub-contractor which I have specifically adjudged that he was not in the circumstances of this case.

[ 17 ] When I review the legislation in effect at that time, the distinction between an “employer” and a “contractor” was significant as the sections referenced in paragraph 21 of that decision relate only to an “employer”. In that case and under the legislation as it was then drafted, the obligations discussed were limited to employers and, as noted at paragraph 18, would not have applied to that defendant if he were a “contractor”. The legislation has since been largely revised .

Despite the change in legislation, this case continues to be helpful in providing guidance on the distinction between a “worker” and a “self-employed person” under the occupational health and safety regime. [ 18 ] I recognize that for tax purposes, Mr. Giesbrecht filed T5s, or “Statement of Contract Payments”, with the Canada Revenue Agency, which suggests he is a self-employed person. There was a signed agreement between Norred and Mr. Giesbrecht stating he was an independent contractor. Additionally, Mr. Giesbrecht was not limited to working for Norred and did work on his own projects as well as for others.

These facts support that Mr. Giesbrecht was “not in the service of an employer” as a self-employed person. [ 19 ] However, I find that there are more factors supporting that Norred and Mr. Giesbrecht were in an employer-worker relationship as contemplated under the Act and Regulations. Norred was contracted by Tri-Quest and paid a lump sum of $11,000.00 to frame this house, less a 10% holdback that would presumably be paid on completion. Norred then hired Mr. Giesbrecht to assist in the completion of the contract to frame this house.

He was working for wages in the service of Norred and would submit an invoice for a previously agreed hourly rate. Mr. Giesbrecht had no expectation of receiving anything but wages for hours worked on this project. He supplied only his basic tools and all other tools and supplies for the project were arranged through Norred with power tools and blueprints kept in a trailer on site. Only Norred stood to make or lose money on this project and it was solely the company who bore the risk of profit or loss. Norred had absolute control of the work and completed the project after Mr.

Giesbrecht’s injury. [ 20 ] Norred had ultimate responsibility for the worksite and the completion of the project. Mr. Giesbrecht was there to assist in fulfilling the project that Norred had been contracted to do and he had no contract independent of Norred’s obligations. Norred benefited from Mr. Giesbrecht’s work and by finishing the work faster, Norred increased their profit for the project while Mr. Giesbrecht’s compensation remained limited solely to an hourly wage. [ 21 ] Mr.

Giesbrecht was a person engaged to perform services in support of Norred’s business and not as a person in business on his own account. Based on the evidence, I am satisfied that Mr. Giesbrecht was a “worker” for the purposes of that word within the scope and intention of the Act and the Regulations . [ 22 ] Mr. Giesbrecht’s medical records were filed as an exhibit and confirm the serious injuries that he suffered, including surgery and a lengthy period of hospitalization.

I am satisfied that he was a worker who suffered serious injury as a result of this event. [ 23 ] With respect to both counts, the Crown has proven the allegations and the actus reus of the charges beyond a reasonable doubt. 2. Due Diligence [ 24 ]

Section 3-80 of the Regulations signals this is a strict liability offence by providing a defence of due diligence and states: 3-80 In any proceedings for an offence pursuant to this Part or the regulations made pursuant to this Part respecting a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, the onus is on the accused to prove, as the case may be, that: (

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

b) there was no better practicable means than was actually used to satisfy the duty or requirement. [ 25 ]

Section 3 - 1(1) of the Act defines practicable and reasonably practicable:

(x) “practicable” means possible given current knowledge, technology and invention; . . . (z) “reasonably practicable” means practicable unless the person on whom a duty is placed can show that there is a gross disproportion between the benefit of the duty and the cost, in time, trouble and money, of the measures to secure the duty; [ 26 ] Essentially, the question is whether the accused company did all that was reasonable to comply with its obligations to protect the workers from the type of event which befell Mr. Giesbrecht.

The Regulations are clear that an owner, employer or contractor has an obligation to ensure any opening or hole in a floor, roof or other work surface into which a worker could step or fall is either covered in a fashion that meets the requirements in the legislation or is protected with a guardrail and a toeboard. From the photographs filed as exhibits, and in particular photo 18 of Exhibit P-1, it appears that Mr. Giesbrecht fell approximately 20 feet from the second floor through a hole in the first floor where the stairwell was going to be placed and onto a concrete pad in the basement.

The photographs show a rather makeshift method of getting from the first floor to the installed platform between the first and second floor and then climbing a stepladder leaned against the wall up to the second floor. Although Mr. Reddekopp testified that these ladders were secured in place by spikes, this was not evident in the photographs tendered. A distance of 20 feet clearly exceeds the permissible distance and required Norred to take precautions outlined in s. 124(1) of the Regulations . [ 27 ] Mr.

Reddekopp testified that these precautions were not implemented because he anticipated receiving and installing the stairwell that day. I note that at no time during construction of the second floor were any of these precautions and requirements complied with which made it an unsafe working environment for the entire day.

Section 124(2) of the Regulations also specifies that “an employer, contractor or owner shall immediately provide an effective alternative means of protection if the covering or guardrail and toeboard need to be removed for any reason.” As such, it seems to me that if the purpose of not implementing the guardrail and toeboard was to install the stairwell, it was up to Norred as the employer to install an effective alternative means of protection. This was not done. Overlapping Obligations [ 28 ] Mr.

Reddekopp’s position is that he was not the appropriate party to be charged with these offences and that there are other parties who also have responsibility for safety on site. [ 29 ] This Court has previously stated that the objective of occupational health and safety legislation is the promotion of safety in the workplace. As confirmed by Judge Morgan in R v Riemer , 2012 SKPC 6 , the scheme of the Act is to protect the worker.

Judge Morgan also noted that obligations imposed under the Act are joint and several and these obligations can overlap. [ 30 ] Workplace safety has been approached by the courts as a shared responsibility. In R v Jastek Master Builder 2004 Inc. , 2006 SKQB 223 , Justice Hrabinsky confirmed the obligations imposed under occupational health and safety legislation are joint and several in an effort to protect the worker. He states at paragraph 14: . . .

Section 116(1) and (2) of The Occupational Health and Safety Regulations provides that where a worker may fall a vertical distance of more than three metres in the case of a temporary installation or more than 1.2 metres in the case of a permanent installation, an "employer", "contractor" or "owner" shall install a guardrail, safety net or provide and require workers to use a fall-arresting device and a lifeline as set out therein. These obligations are placed on the different classes of persons by the legislation and they both overlap and operate simultaneously.

I am of the view that it is not a defence for the contractor or owner to point to the employer of a worker and state that it is the obligation of the employer to provide and require the use of safety equipment if the contractor or owner has not made sufficient efforts to ensure that the equipment is both provided and is used by the workers. [ 31 ] The fact that Norred was charged does not necessarily reflect that there was not a concurrent responsibility by another party; at the same time, you cannot use the negligence of others to excuse your own negligence.

There may well be others who also bore responsibility for ensuring a safe work environment, but this does not discharge Norred from taking the steps required under the legislation.

Foreseeability [ 32 ] Some cases have discussed whether an event or injury needs to be reasonably foreseeable as suggested in R v Nalco Champion, an Ecolab Company, also known as Nalco Canada ULC , 2018 SKPC 61 , a case which the Crown advises is under appeal on that issue. [ 33 ] Should this be a requirement, I do not hesitate to conclude that it was foreseeable that someone could fall down this open area and into the basement, a fall of approximately 20 feet. The opening was approximately eight feet by eight feet. It was Norred’s responsibility to protect its workers from this hazard. The fact that Mr.

Reddekopp had some of the guardrails prepared confirms that he was aware there were safety issues and the potential for a fall. It was incumbent on him to implement those safeguards in a timely way. [ 34 ] I recognize that Mr. Giesbrecht and Mr. Reddekopp were experienced framers and both were knowledgeable of safety requirements. I also note that Mr. Giesbrecht did experience dizzy spells from time to time. Mr. Reddekopp was not aware of this prior to trial; however, Mr. Giesbrecht testified that he knew when he experienced these spells and he did not recall any indications of dizziness prior to his fall.

He also testified that he had not experienced a dizzy spell that summer. I am satisfied this was not an issue in Mr. Giesbrecht’s fall. [ 35 ] In considering whether Mr. Giesbrecht’s fall or injuries were reasonably foreseeable, I am satisfied that a fall of this nature and the resulting injuries are directly what the legislated requirements aim to prevent through having a covering or guardrail to limit the chances of falling or, at a minimum, limit the distance fallen.

Count One: Installing a Covering for the Hole [ 36 ] Count one relates to the requirement to cover the opening with a covering capable of supporting a load of 360 kilograms per square metre. When asked how a hole of that size could be covered, Occupational Health and Safety Officer Chad Parenteau stated, “I honestly don’t know.” If an Occupational Health and Safety Officer cannot offer a solution to covering that surface, then I am satisfied on a balance of probabilities that there were no practicable means for Norred to satisfy this requirement.

The Crown acknowledged that this may not be a practicable solution given the evidence in these particular circumstances and that a guardrail would have been the more appropriate method of compliance. [ 37 ] As such, I find Norred Construction Ltd. not guilty of count one. Count Two: Installing a Guardrail and Toeboard [ 38 ] Count two involves the requirement to provide a guardrail and toeboard. Counsel for the defence raised a question as to the stage at which a responsibility to implement these safety measures arises. He noted that Mr. Reddekopp was in the process of building these guardrails. Mr.

Reddekopp testified that the stairwell was going to be installed soon and he anticipated it would arrive that day. He testified that these guardrails were mostly prepared and on the second floor to be installed after the stairwell arrived and was in place. I note that Mr. Reddekopp and Mr. Giesbrecht were working on the second floor approximately five hours at the time of the fall and that no safety measures were in place during that time. [ 39 ] I do not find that Norred was complying with the requirement of this

section in a timely way. Mr. Reddekopp and Mr. Giesbrecht were on the second floor for nearly five hours prior to the fall and, during that entire time, they were exposed to a hole approximately eight feet by eight feet with a 20 foot drop. To prevent injuries, this should have been done at the outset of the day and adjusted as necessary with appropriate alternatives discussed as the guardrails needed to be removed as the project progressed. After this incident occurred at approximately 1:00 p.m., Mr.

Reddekopp proceeded to install guardrails at the construction site even while Occupational Health and Safety Officers were still investigating. Clearly this action was too little too late. It was the very event that transpired which the guardrails may have prevented. [ 40 ] On count two, Mr. Reddekopp failed to satisfy me on a balance of probabilities that it was not practicable or reasonably practicable to do more than was actually done. He failed to satisfy the duty imposed on him by the Act and the Regulations . I find Norred Construction Ltd. guilty of count two.

________________________ N.D. Crooks, J