R. v. Tolson, 2017 MBPC 49

Cite: 2017 MBPC 49 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Eric Hachinski, for the Crown ) - and – ) ) Kroeker Farms Limited, ) Thomas G. Frohlinger, Defendant ) ) for the Defendant ) ) Judgment delivered: November 2, 2017 R.L. POLLACK P.J. 1 ) Kroeker Farms Limited (“Kroeker”) stands charged under The Workplace Safety and Health Act , CCSM c. W-210 (“the Act ”) with five offences arising from a workplace accident on October 24, 2013.

An employee at work in its potato packing plant suffered a loss of part of his finger when he came in contact with an operating conveyor. 2 ) Although the five-count Information contains every possible infraction applicable to the allegations against Kroeker, it focuses on two allegations: failure to have a safe conveyor and failure to have safe work procedures concerning that conveyor. I will deal with the specifics of each count in due course.

The Workplace Safety and Health Act provisions: 3 ) These reasons for enacting workplace safety legislation, found at the beginning of the Act , inform an analysis of the evidence adduced: 2(1) The objects and purposes of this Act are (

a) to secure workers and self-employed persons from risks to their safety, health and welfare arising out of, or in connection with, activities in their workplaces; and (

b) to protect other persons from risks to their safety and health arising out of, or in connection with, activities in workplaces. 2(2) Without limiting the generality of subsection (1), the objects and purposes of this Act include . . . . . (

e) the promotion of workers' rights (

i) to know about safety and health hazards in their workplaces, (underlining added) 4 ) Pursuant to

section 55 of the Act , which creates a series of

summary conviction offences, anyone guilty of an offence under the Act is liable to a fine of $250,000 and, if the offence is a continuing offence, $25,000 for each day upon which the offence continues. Second or subsequent offenders face maxima that are doubled. There is also a six-month imprisonment provision. Strict liability: 5 ) On the first day of the first year of law school it is made clear that there cannot be a crime without a requisite intent. In R. v. Tolson , [1886- 1890] All ER Rep 26 , Stephen J wrote: The full definition of every crime contains expressly or by implication a proposition as to state of mind. Therefore, if the mental element

of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; (underlining added) American jurisprudence began developing in the same way at that time. In State v.

Blue (1898) 17 Utah 175, Bartch J wrote for the UtahSupreme Court that: To prevent the punishment of the innocent, there has been ingrafted into our system of jurisprudence, as presumably in every other, theprinciple that the wrongful or criminal intent is the essence of crime, without which it cannot exist. (underlining added) 6) Those profound statements about the mental element in criminal law are from a time long before unsafe workplaces resultedin trials in a courtroom usually used for criminal trials involving malice or deceit.

Workplace safety offences are public welfare offencesand, as Dickson J (as he then was) explained for a unanimous panel in R. v. Sault Ste. Marie, (SCC), [1978] S.C.J. No.59, proof of the mental element for such an offence forms no part of the prosecution burden. Simply put, once the actus reus of theoffence is proved, it is for the defence to demonstrate on a balance of probabilities - not just by raising a reasonable doubt - that theyexercised due diligence.

So the essence of public welfare offences is absence of diligence but, to secure a conviction, the prosecutionneed not prove its absence. 7) Now in its fortieth year, this passage of Dickson J’s judgment is still quoted in every workplace safety case: 58 The correct approach, in my opinion, is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheriesand to the virtual impossibility in most regulatory cases of proving wrongful intention.

In a normal case, the accused alone will haveknowledge of what he has done to avoid the breach and it is not improper to expect him to come forward with the evidence of duediligence. This is particularly so when it is alleged, for example, that pollution was caused by the activities of a large and complexcorporation. Equally, there is nothing wrong with rejecting absolute liability and admitting the defence of reasonable care. 59 In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care hasbeen taken.

This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seemunfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyonda reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities thathe has a defence of reasonable care. 8) It is logical to apply this public welfare offence doctrine, known as strict liability, to workplace safety cases.

Indeed the Actsets out a series of requirements for keeping the workplace safe and articulates this expectation that defendants should account for theirdiligence: Onus 57(1) In any proceedings for an offence under any of the provisions of this Act or regulations consisting of a failure to comply with aduty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means todo something, it shall be for the accused to prove that it was not practicable or not reasonably practicable to do more than was in factdone to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty orrequirement. (underlining added) How high that expectation should be is what this case concerns because, notwithstanding sections 2 and 57 of the Act, it is not axiomaticthat, when an employee is injured by a conveyor, his employer is guilty of an offence.

Proof Burdens: 9) Therefore, upon proof of the actus reus as set out in the Information, a burden shift occurs. Public welfare offences are notthe only prosecutions in which burdens are shifted within a trial. Burdens on the accused were tested under the presumption ofinnocence clause in the Canadian Bill of Rights before the Charter of Rights and Freedoms was proclaimed. In R. v. Appleby, (SCC), [1972] S.C.R. 303, the Supreme Court examined the Criminal Code provision deeming the person found in the driverseat of a motor vehicle to be in care or control.

Although this created a “reverse onus” the Court held that it was not an unfair onusbecause the subject had the “knowledge and power to make the required reply”. Contrast this with the decision in R. v. Shelley, (SCC), [1981] 2 S.C.R. 196 in which a Customs Act provision made it an offence to possess certain imported goods “withoutlawful excuse, the proof of which shall be upon the person accused”.

For the majority, Laskin CJC wrote: It is evident to me in this case that there is on the record no rational or necessary connection between the fact proved, i.e., possession ofgoods of foreign origin, and the conclusion of unlawful importation which the accused under [Customs Act] s. 248(1) must, to avoidconviction, disprove. In Appleby there was clearly a rational connection between the subject being found in the driver’s seat and thepresumption that the driver had care or control of the vehicle. 10) The Charter only enforces this philosophy and one need only read the early decision in R. v.

Oakes, (SCC),[1986] S.C.J. No. 7 as the prime example. Until that judgment, proof of possession of contraband drugs triggered an onus on thoseaccused to prove that they were not in possession for the purpose of trafficking. Although I have referred to examples of mens reaoffences, the theme is clear: Canadian criminal jurisprudence eschews unfair burden shifts. The Kroeker workplace: 11) Kroeker is no small Manitoba family farm. Kroeker is what is known as an agri-business and, according to its first safetyofficer, it is a large one.

Its key product is potatoes which it plants, grows, harvests, packs and ships to international markets. Its chief

executive officer has a MBA from a prestigious American university. Kroeker has several packing plants, a fleet of tractors and trucks and over one hundred employees. 12 ) In one of its plants Kroeker packs and ships potatoes in seventy-five pound bags. The bags are filled at floor level and sewn shut by personnel with hand-held sewing machines. These bags of potatoes must be properly piled on pallets for shipping. This is done manually but with the assistance of a conveyor.

The closed bag is placed on the conveyor at ground level and a belt driven by an electric motor conveys the bag to a table forty-two inches above the floor. An employee then carries the bag to a pallet. The conveyor is portable, so that it can be rolled to any location where it is needed. 13 ) The conveyor belt is twenty-two inches wide and it carries one bag up an incline for seventy-six inches to where the bag is dropped onto a table. The table is also twenty-two inches wide and it is forty-one inches long.

Employees on either corner of the far side of the table take turns removing a bag for placement on a pallet. Rollers at each end of the conveyor hold the belt stretched and in place. 14 ) The roller at the top of the conveyor has cleats and it is powered by the motor located on one side of the conveyor; as the motor turns the roller, the cleats adhere to the underside of the belt and make it move endlessly around the rollers. A metal enclosure surrounds the motor, its drive system and the end of the roller.

On October 24, 2013 the other end of that roller was visible because that side had no enclosure, shield or guard. What was exposed was a smooth end of the roller set in a bushing. The photographs indicate that it did not protrude beyond the frame of the conveyor. 15 ) There is a gap of less than one centimetre between the frame of the conveyor and the edge of the belt and, because there was no enclosure, shield or guard, the edge of some of the cleats is visible.

When I say they are visible, I mean that they are seen in flash photographs but I am informed that ordinarily lighting would not make them easily visible. And the photographs that show the cleats are close-up; it seems to me that one would almost have to be touching the conveyor with one’s nose to see them.

Regardless, if one placed one’s finger in that gap and pointed it toward the cleats, and the finger became caught between a cleat and the belt, serious injury would undoubtedly follow. 16 ) Because the employees who move the bags from the table to the nearby pallets take turns, and because the conveyor belt moves at a slow speed, an employee is required to move a bag approximately every seventy seconds. The evidence established that this enables the employees to have moments when they are simply waiting for the next bag.

The accident: 17 ) Peter Neufeld, Jr. was one of those employees beside the table at the top of the conveyor. He was standing on the same side as the exposed end of the roller. Given the dimensions, his distance from the end of the roller, or from that gap, ought to have been at least twenty-four inches as he removed his next bag of potatoes. Through some accident or combination of accidents, his index finger came so close to the moving parts that its tip was severed. Kroeker staff immediately shut down the conveyor and attended to Mr. Neufeld. He was treated at a nearby hospital.

According to proper procedures, the motor was unplugged and the scene left intact. 18 ) Herb Franz was Kroeker’s safety officer and, shortly after the incident at 6:00 P.M., he called Todd Chael, a Workplace Safety and Health Division (“WSH”) investigator to report the incident. Mr. Chael was in Winnipeg and he drove to Morden to meet with Mr. Franz and Ed Klassen, Kroeker’s human relations manager. He issued a “Stop Work and Improvement Order” and prepared a preliminary report for the investigator who was assigned to the file. 19 ) I am unable to make a precise finding as to how Mr. Neufeld’s finger was severed.

In an interview with investigators he was unable to say what happened and could only approximate where, in relation to the roller, his finger became injured. 20 ) Notwithstanding the stop-work order issued by Mr. Chael, there was no forensic analysis of the conveyor undertaken. And there is no forensic evidence concerning the injury.

No witness was qualified as an expert in conveyors or moving parts in a conveyor to provide further information. (My own experience with belting, of which I advised counsel, was of no assistance.) Indeed, none of the photographic evidence has so much as a ruler to indicate the size of the depicted parts. I make this criticism mindful of Veit J’s observation in R. v. Precision Drilling, 2016 ABQB 518 : 77 A trial judge has to identify the appropriate standard of care in the particular situation which is being assessed.

It will be rare that a trial judge can do this in a technical field without reliance on expert evidence, and rarer still that a trial judge can impose their own standard of care on an industry. Leave to appeal has been granted ( 2017 ABCA 47 ) but, in my opinion, the appeal will not have impact on this dicta . 21 ) Using its own shop facilities, Kroeker immediately set to work manufacturing a metal guard for the open side of the conveyor and Mr. Chael’s stop-work order was actually terminated within twenty-four hours. The conveyor’s prior record: 22 ) The conveyor was manufactured by Kroeker in its own workshop.

No one is certain when it was built but the evidence is clear that it has been in use for decades. Witnesses spoke of it having been in use for thirty years. It is inspected on a maintenance

schedule and repaired or painted as necessary on Kroeker’s premises. 23 ) Certainly this conveyor had been in use well before 2009 when WSH began its Safe Farms Check Program (the “Program”). The purpose of the Program was to integrate farming operations like Kroeker’s into WSH’s regulatory umbrella. This involved an orientation, inspections and the use of Program templates to bring Kroeker up to date in the world of workplace safety. Kroeker was provided with a copy of the Act and Regulations as well as a series of bulletins from WSH. 24 ) On September 22, 2009 WSH issued ten improvement orders to Kroeker.

One item complained that guards on some machines were missing, including “exposed shaft ends on various pieces of equipment including conveyor equipment”. Kroeker produced a copy

of the WSH improvement orders which includes a “Compliance Date” column in which the date of October 23, 2009 is indicated for this and eight other complaints but there is no acknowledgment of the document by WSH; in fact, the document is unsigned where WSH, worker and employer signatures would be found. (A tenth complaint was remedied within days and an email acknowledgment from WSH was produced.) 25 ) There was no further inspection until December 17, 2009.

Another unsigned document, bearing that date, was produced indicating that Rubber flaps have been designed and installed over critical areas over exposed end shafts on the conveyors. 26 ) It is entitled “Re-Inspection Report” but it indicates a compliance date of October 26, 2009. Regardless of this discrepancy and the absence of signatures, a reasonable inference is that the improvements satisfied WSH and the potato bag conveyor was not one of the critical areas. 27 ) That conveyor prompted workplace safety attention once before.

It was necessary to make a greater space between the end of the conveyor and the table to prevent an employee’s hands from getting caught between the turning belt and the edge of the table. What role, if any, WSH may have had in that instance was not made clear. On October 3, 2012 WSH conducted a “potato harvest inspection” and the report indicates “no issues with conveyor set ups” but I cannot say whether that was relevant to this issue as I do not know when that incident was. Whether Kroeker was diligent about conveyor safety: 28 ) Kroeker was actively engaged in the Program; of that there can be no doubt.

And it was Mr. Klassen who was Kroeker’s original link to WSH. He testified that, in his opinion, WSH officers were “the objective eye” that could spot a risk that he, as safety officer, may not see. That is a pretty good street level job description for the several WSH personnel with whom Kroeker liaised as it progressed through the three levels of compliance. 29 ) Four counts concern allegations about the safety of the conveyor system with which Mr.

Neufeld came into contact and was injured: Count 1 - “by failing to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his (sic) workers to wit: by failing to adequately guard the moving parts of a conveyer (sic) belt”… It appears that the Informant did not understand how the conveyor worked. The conveyor belt has no moving parts and therefore Kroeker is not guilty of count 1. The second charge provides an adequate allegation of fault resulting in Mr.

Neufeld’s injury: Count 2 - “by failing to provide and maintain a workplace, necessary equipment, systems and tools that are safe and without risk to health, so far as was reasonably practicable to wit: by failing to provide and maintain a bag conveyer (sic) that was safe and without risks to health so far as was reasonably practicable” … In Manitoba Regulation 217/2006, however, one finds some specificity about keeping machines safe and Count 4 and Count 5 allege two specific failures; proof of either would constitute proof of the actus reus of Count 2. (Had the Informant understood that there is only one drive roller on the machine and it is an energized drive roller, there could have been less word processing.) Count 4 - “by failing to ensure that a machine has safeguards on it that will prevent a worker from coming into contact with the moving parts of the machine, to wit: by failing to ensure that the bag conveyor had adequate guards to protect workers from coming into contact with the drive roller of the machine” … Count 5 – “by failing to ensure that a machine has safeguards on it that will prevent a worker from coming into contact with the energized components of the machine, to wit: by failing to ensure that the bag conveyor had adequate guards to protect workers from coming into contact with the energized drive rollers of the machine” … 30 ) That Mr.

Neufeld was in contact with that roller at all is inconsistent with the evidence of his job description. That evidence is clear that he ought to have been standing at the rear corner of the table onto which bags were deposited by the conveyor. I have been assured that a photograph provided by the prosecution depicts the scene as soon as the injury occurred because the power was immediately shut off. The top half of a bag of potatoes lies at the base of the conveyor; no other potato bags are on the conveyor or on the table.

This demonstrates that Neufeld was at some point in that seventy-second cycle with nothing to do. The fact that he was injured by that roller indicates that he was well out of position. 31 ) R. v. Sunshine Village Corp ., 2010 ABQB 493 is a case in which employees specifically trained to identify a particular danger failed to follow proper procedures. In paragraph 89, Bensler J pointed out that: Unfortunately, no one had an explanation as to why they did not follow the procedures on this day.

Unlike the situation in Dofasco , the employees in this case did not make a conscious decision to disobey an instruction or work practice in order to get the work done. I am mindful of the case law cited above that states that employee error or misconduct is not a defence. However, it is relevant in the defence of due diligence. It is not a complete answer to the charges but Mr.

Neufeld’s wandering too close to the moving conveyor is a relevant factor in a case of an unheard of danger. 32 ) With regard to Counts 4 and 5, the prosecution have proved that there were no guards but whether any guard was required depends upon whether there was a risk to worker safety that a diligent employer ought to have addressed. In his summation, the

prosecutor submitted that the injury to Mr. Neufeld was caused by a danger that Kroeker did not see; certainly that is true. Generations of workers who used that conveyor without an incident resembling what happened to Mr. Neufeld would agree with that submission. 33 ) Kroeker is only liable to conviction if the accident was foreseeable.

This is consistent with the early jurisprudence to which I have referred and it would put an unfair burden on Kroeker to expect it to address an unforeseeable hazard: For a potential danger to be foreseeable, there must at least be a reasonable prospect or expectation that it will arise. R. v. Sunshine Village Corp ., paragraph 90 Kroeker has demonstrated that the injury to Mr. Neufeld was caused by a danger that WSH did not foresee. Since 2009 WSH has inspected and re-inspected.

The 2012 item “no issues with conveyor set ups” bears this note: This Report Form has been discussed with the undersigned, and a copy given to each on 20 November 2012 at 08:37 and it is signed by Mr. Klassen. In this way, Kroeker has shown that it is was not reasonably practicable to do more than what it had been doing, which was to comply with WSH when required to do so and – further – to rely upon WSH as well as its own resources. 34 ) As for Kroeker’s resources, it is not irrelevant that Kroeker reacted to the stop-work order within twenty-four hours of the accident by manufacturing a guard.

The evidence is replete with examples of Kroeker’s compliance efforts since 2009 as it worked its way through the Program’s three levels designed to be completed in three years, including:

a) Kroeker was in its third year, in its third level, when Mr. Neufeld was hurt.

b) On February 21, 2012 WSH issued a Level 1 progress report to Kroeker including a statement that “Maintenance department has been building guards for non-manufactured issues”.

c) An inspection report one month before the accident concerned a child work permit. It indicated that: (

i) safe work procedures were developed by Kroeker and they included ergonomic safety, and (ii) an electrical deficiency was immediately repaired.

d) Earlier in 2013 a safe work procedure for “Safe Lifting” was reduced to writing. By putting up its persons in authority to testify as to its ongoing liaison with WSH, Kroeker proclaimed its diligence in response to these allegations. 35 ) Kroeker has established on a balance of probabilities that the condition of the conveyor on the day of Mr. Neufeld’s injury did not require any further diligence than what it had already demonstrated. Accordingly Kroeker is not guilty of contravening the Regulations in Counts 4 and 5.

As the lack of a guard was the only allegation that made the conveyor unsafe, it follows that Kroeker is not guilty of Count 2.

Whether Kroeker diligently developed safe work procedures: 36 ) In answer to this charge: Count 3 – “by failing to develop and implement safe work procedures respecting all machines and tools used in the workplace, to wit: by failing to develop and implement safe work procedures for the use of the bag conveyor and the task of stacking potato bags when using the bag conveyor”… Kroeker says that safe work procedures were developed and implemented on the factory floor and, as vividly illustrated by Mr. Neufeld working in the same plant as his father, were to be passed on from generation to generation.

Its safety officer, Mr. Franz, testified that each task had a safe work procedure and that not all were written down. He explained that safe work procedures were codified in “oral tradition”. Mr.

Franz produced a safe work procedure reduced to writing after the accident but testified that everyone would know about its contents because of oral tradition. 37 ) Under “Step 1: Policy Statement” the June 8, 2009 Program template states: Purpose : Goals and objectives are required to provide written direction to assist the development, implementation and evaluation of an effective Safety Program. (underlining added) Under “Step 2: Identifying and Controlling Hazards”, this excerpt is found: 5.

Develop Written Safe Work Procedures Once hazards have been identified and control measures have been selected to reduce or control the hazard, the safest way to perform the task will be put in writing . And then:

Supervisors are responsible for ensuring that any existing hazards, and the measure(

s) to protect the worker, are included in the written safe work procedures . (underlining added) Turning to the Program worksheets for Level 2, it is clear that Safe Work Procedures for all tasks ought to be kept in a binder. 38 ) The safe work procedures requirement is found in Subsection 16.2(1) of the Act : (

a) Develop and implement safe work procedures respecting all machines and tools used in the workplace While Mr. Franz was correct in pointing out that the words of the statute do not require a written safe work procedure, common sense would indicate the necessity of reducing it to writing. Kroeker did not have an employee tasked with being the keeper of the oral tradition; Mr. Franz testified that the safety knowledge was held collectively.

The problem with those statements is that, in the absence of a mandatory recital of the procedures by each worker each day, the safe work procedures cannot be recognized in a way that enables them to be tested or modified or even taught properly as the circumstances may require. 39 ) Without a document or poster with the safe work procedures, how can a new worker exercise his/her right to identify the risks before going to work as guaranteed by

section 2 of the Act ? Documentation provided by Kroeker clearly demonstrates its ability to generate written statements about workplace safety and health issues, including Safe Work Procedures.

In fact it produced written evidence of the training provided to Neufeld to enable him to pallet seventy-five-pound bags of potatoes and the date upon which that training was received. 40 ) In my opinion, a minimum standard for The Workplace Safety and Health Act safe work procedures is that they are reduced to writing or its functional equivalent, such as photographs or drawings, to enable an inspection to be made by WSH. Kroeker has proclaimed that it had nothing reduced to writing concerning the conveyor that injured Mr. Neufeld and, therefore, there is no evidence of due diligence.

Accordingly, I find Kroeker guilty of failing to comply with subsection 16.2(1)(

a) of the Act as set out in Count 3. 41 ) The verdicts are therefore: Count 1 – not guilty Count 2 – not guilty Count 3 – guilty Count 4 – not guilty Count 5 – not guilty. “Original signed by” POLLACK P.J.