Her Majesty the Queen - v. -, 2014 SKPC 168

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 168 Date: December 1, 2014 Information: 24424817 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Fred Thue Construction Ltd. Appearing: Mr. Michael Segu For the Crown Self-Represented For the Accused JUDGMENT C.C. TOTH , J [ 1 ] Fred Thue Construction Ltd. stands charged with multiple violations of The Occupational Health and Safety Act arising from a tragic and preventable accident. EVIDENCE [ 2 ] Cory Getz was called by the Crown. He contracted with Mr.

Fred Thue to frame the walls and trusses for a building on his property. There was no formal contract but when the project was completed, he wrote a cheque to Fred Thue Construction Ltd. for the

amount billed. He testified that when Mr. Thue presented the bill for payment (P-11), he explained that the amount charged was based on “what his guy’s wages were, what the diesel and stuff he would have used on his equipment and some of the miscellaneous ... supplies they needed such as nails and what not”. [ 3 ] While work on the project was ongoing, he spoke with Fred Thue who advised that one of his guys had fallen off the roof. [ 4 ] Jacob Ulmer, who was 18 at the time of the accident, testified that he went to work for Mr. Thue and expected to be paid by Mr. Thue.

After staying the night with the Thue family, he went to the building site and commenced working on the trusses which were by his estimate 20 to 25 feet off the ground. Significantly there was no fall protection equipment provided, there was no training provided and he was not required to demonstrate that he could safely perform the work he was to do on the trusses. [ 5 ] After six or seven hours on the job, he fell at least 20 feet. There was no netting or other devices to prevent the fall or serious injury. He struck the ground and broke his wrist and two vertebra. [ 6 ] No first aid was administered on site.

He had not been told where or whether there was a first aid station on site. [ 7 ] He had not been wearing a hard hat when he fell. Nor did he see it as necessary given nothing was above the trusses he was working on. [ 8 ] He was taken to the hospital and released after five days. A halo was bolted to his head, he subsequently spent six months in a hard brace, three months in a soft brace and a further three months off and on with a soft brace. [ 9 ] Mr. Milo who is employed by Occupational Health and Safety testified that no notification was received by his office of the accident by Mr. Thue.

His office eventually learned of the matter, not from Fred Thue Construction Ltd., but from Worker’s Compensation. [ 10 ] Mr. Thue called his son, Rhett, another employee, himself and another contractor. [ 11 ] While all attempted through their testimony to help Mr. Thue by reiterating his key arguments, I found none to be completely candid or credible. [ 12 ] His son, Rhett, maintained that all employees on site were subcontractors including himself. He maintained that he was a subcontractor while working almost exclusively for his father and taking direction from him. [ 13 ] He testified that Mr.

Ulmer’s wages would be more than $16.00 per hour but less than $20.00 per hour, effectively reinforcing the Crown’s argument of employment and that he was the foreman, effectively establishing that he was in charge when his father was absent. [ 14 ] Mr. Hill was called by Mr. Thue. He was on site on the day in question and he testified that Mr. Ulmer was not given fall protection equipment again inadvertently reinforcing the Crown’s argument. COUNT 1 [ 15 ] In respect to count 1 on the indictment, the Crown must first establish that Fred Thue Construction Ltd. is an employer under

the Act . [ 16 ] The seminal case in respect to whether a person is an employee or an independent contractor is 671122 Ontario Ltd. v Sagaz Industries Canada Inc. , 2001 SCC 59 , where the Court held that there is no one conclusive test to determine whether a person is an employee or an independent contractor. The Court canvassed the jurisprudence and stated: [I]t is exceedingly doubtful whether the search for a formula in the nature of a single test for identifying a contract of service any longer serves a useful purpose....

The most that can profitably be done is to examine all the possible factors which have been referred to in these cases as bearing on the nature of the relationship between the parties concerned. Clearly not all of these factors will be relevant in all cases, or have the same weight in all cases. Equally clearly no magic formula can be propounded for determining which factors should, in any given case, be treated as the determining ones.

Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations , supra . The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor.

However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks. 48 It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case. [my emphasis] [ 17 ] Mr.

Ulmer had no independent control of his employment. He was in search of better wages. He was taken to the site and given work to do. His wages would be set by Mr. Thue and would be better than the $16.00 per hour he had been making. He was under the direction of Mr. Thue’s son. He had no financial stake in the building contract. No one ever suggested to him that he was suddenly a self-employed contractor. For good reason he considered himself to be in the service of Mr. Thue and I so find. [ 18 ] Mr. Ulmer received no training.

While he had worked as a framer for another builder, that in no way removes the obligation of an employer to ensure his worker is trained and able to safely do the work assigned. [ 19 ] The relevant portions of s. 19(1) of The Occupational Health and Safety Act are: 19

(1) An employer shall ensure that a worker is trained in all matters that are necessary to protect the health and safety of the worker when the worker: (

a) begins work at a place of employment; or (

b) is moved from one work activity or work site to another that differs with respect to hazards, facilities or procedures.

(2) The training required by subsection (1) must include: ... (

b) the location of first aid facilities; ... (

e) any procedures, plans, policies and programs that the employer is required to develop pursuant to the Act or any regulations made pursuant to the Act that apply to the worker’s work at the place of employment; and (

f) any other matters that are necessary to ensure the health and safety of the worker while the worker is at work. [ 20 ] Train is defined in s. 2(1)(eee) of The Occupational Health and Safety Regulations:

2(1)(eee) “train ” means to give information and explanation to a worker with respect to a particular subject-matter and require a practical demonstration that the worker has acquired knowledge or skill related to the subject-matter; [ 21 ] His assigned work required him to be at a height from which he could be seriously injured in a fall. [ 22 ] The evidence establishes that no such training was provided. COUNT 2 [ 23 ] Section 8(1)(

b) of the Regulations sets out the requirement that “an employer or a contractor” shall provide notice “as soon as reasonably possible” of an accident where a worker is required to be admitted to a hospital as an inpatient for a period of 72 hours. Section 4(2) of the Regulations sets out that notice is deemed not to have been given until the notice is actually received by the director or an officer of Occupational Health and Safety. [ 24 ] Jacob Ulmer testified that as a result of his fall at the work site, he was hospitalized for a period in excess of 72 hours.

David Milo testified that the only notification of the accident in this case came from Worker’s Compensation. [ 25 ] Fred Thue Construction Ltd. fits both the definition of a contractor and an employer. In either case, the company failed to comply with

section 8. COUNT 3 [ 26 ] Jacob Ulmer testified that he was standing on trusses when he fell 20 to 25 feet to the ground. He also testified that he was not provided with nor wearing any fall protection when he was working on the roof rafters. [ 27 ] Section 116(2) of the Regulations requires that an “employer or contractor” ensure that workers working at a height where they may fall three metres or more use a fall protection system. The failure of Fred Thue Construction Ltd. to ensure that fall protection was used by Jacob Ulmer was a violation of the Regulations . COUNT 4 [ 28 ]

Section 17 of the Regulations requires that an “employer or a contractor” ensures that all work at a place of employment is competently and sufficiently supervised. The Regulations then go on to indicate what proper supervision entails, including that all workers comply with the Act and Regulations . [ 29 ] In this case Jacob Ulmer testified that he was working at a height at which he could fall more than three metres, was not wearing any fall protection, was not wearing any protective headwear, and was not provided with fall protection equipment nor protective headwear. These failures to have workers comply with the requirements of the Act and Regulations is a contravention of

section 17. COUNT 5 [ 30 ]

Section 91 of the Regulations sets out the circumstances where a worker shall wear approved industrial protective headwear. It also requires the “employer or contractor” provide it to the worker and ensure that it is worn on a construction site. Mr. Ulmer was not

wearing protective headwear when he fell. [ 31 ] Mr. Thue represented himself. His defence was firstly that Mr. Ulmer was an independent contractor (which I expressly reject based on the testimony and case law and which is irrelevant in respect to counts 2 through 5). Secondly he argued that Mr. Ulmer caused his own accident as his boots were not tied (which is irrelevant as Mr. Thue, as employer or as contractor, had a duty to supervise and ensure proper safety procedures on the work site were followed). [ 32 ] Mr.

Thue also argued that it was impossible to use safety equipment on trusses. [ 33 ] The Regulations clearly require safety precautions be in place when the work is over three metres in height and that was clearly not done. While it is not necessary for the Crown to disprove Mr. Thue’s pronouncement, it was clear from the evidence that safe practices were available but not put in place. [ 34 ] What is clear from the evidence is that the site had no safety plan, no fall equipment was in use and frankly no enforcement of safety rules while Mr. Ulmer was employed there.

All of which is the responsibility of Fred Thue Construction Ltd. pursuant to the provisions of The Occupational Health and Safety Act . [ 35 ] There was a flagrant disregard of legislation that was enacted to protect workers like Mr. Ulmer from incurring the kind of injury he suffered. [ 36 ] The situation is further aggravated by the post accident conduct of not informing Occupational Health and Safety of the serious injury that occurred. [ 37 ] The accused is found guilty of all five counts. C.C. Toth, J