Her Majesty the Queen - v. -, 2019 SKPC 40

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 40 Date: June 20, 2019 Information: 90215189 Location: Regina ______________________________________________________________________________ Between: Her Majesty the Queen - and - Superior General Partner Inc. Appearing: Buffy L. Rodgers For the Crown

John T. Agioritis For the Accused JUDGMENT B.D. HENNING, J. [1] This case is a prosecution of the corporate defendant for breaches of The Occupational Health and Safety Regulations, 1996, RRS c 0-1.1 Reg 1 [Regulations] as amended. Trial proceeded on March 12, 2019 and following,with argument April 30, 2019. The charges are as follows: Fail in the provision and maintenance of plant, systems of work and working environments that ensure, as far as is reasonablypracticable, the health, safety and welfare at work of the employer’s workers as required by subsection 12(

a) of The Occupational Healthand Safety Regulations, 1996, resulting in a serious injury to Jesse Seckinger, contrary to

section 3-78(

g) and 3-79 of The SaskatchewanEmployment Act.; and Fail to ensure arrangements for the use, handling, storage and transport of articles and substances in a manner that protects the health andsafety of workers as required by s. 12(

b) of The Occupational Health and Safety Regulations, 1996, resulting in a serious injury to JesseSeckinger, contrary to

section 3-78(

g) and 3-79 of The Saskatchewan Employment Act. PRELIMINARY ISSUE AND MOTION TO DISMISS CHARGES [2] The defence made a motion to have the charges dismissed and in support of the motion called Ms. Miriam Levin, General Counsel for the partnership and/or corporations controlling various related companies. Ms. Levin gaveevidence with respect to structure of the companies and in particular with respect to the corporation carrying on the business of WINROCwhich is the trade name under which the business in question was operating.

She explained that the originally charged parties were notthe correct legal corporations which conducted the business of the company in question, and she clarified what the current corporatestructure was. Ms. Levin gave the name of the corporation now operating the business in question, which was later incorporated into anamendment of the Information. She elaborated, explaining how counsel retained by a former controlling corporation had at one pointappeared and remained on record for some time on this matter under the misapprehension that they still were involved.

This is anextraordinary example of confusion with respect to corporate names and potential parties to a prosecution. The company in question,however, was referred to most often by its common trade name, `WINROC`, and this name will be used in this judgment. [3] It was argued that the charges should be dismissed against the originally charged parties, without adding parties or amending the information to include the correct party.

There is, however, case authority, includingOccupational Health and Safety cases, where confusion as to the proper legal entity to be charged occurred where there were a number ofrelated corporations or partnerships, sometimes with very similar names. This situation has been held not to preclude amendment, andthe adding of the correct legal entity is not considered legal prejudice to the parties even after the expiry of a limitation period.

This hasbeen done in cases where there was confusion over the particular name of a legal entity operating the business, but no confusion occurredover the event comprising the charge or with the party in actual operation of the business where the event occurred.

This is the case inthe present proceeding. [4] These authorities include: Her Majesty the Queen in Right of Ontario (Ministry of Labour) v Ivaco Inc. [Indexed as: Ontario (Ministry of Labour) v Ivaco Inc.], (ON SC), 53 OR (3d) 675 (Ont Sup Ct); Ontario (Ministry of Labour) v NMC Canada Inc., (ON CA), 25 OR (3d) 461 (Ont CA) where Justice Laskinobserved with respect to partnerships: Partnerships use distinctive firm names, they maintain separate firm bank accounts; they enter into contracts of employment and buy andsell property in the name of the firm.

NMC and Stanford carried on their business using a distinctive firm name; the accident happened at their firm's place of business; and in a practical, if not a legal sense, the worker who died was their firm's employee. In these circumstances, no injustice is done by amending the information to charge the two partners instead of the firm. Ontario (Ministry of Government and Consumer Services) v Ivan's Electric Ltd. 2017 ONCJ 227 at para 120 : But more importantly, in respect to applications brought to amend after a limitation period has expired, it has been noted by Wake J. in R . v.

Thomas Fuller Construction Co. , [2008] O.J. No. 4004 (O.C.J.), at paras. 20 and 28 to 30 , that courts have allowed an amendment even after the expiry of a limitation period, where in complex corporate structures of a corporate holding company, it would not be unexpected that a minor error or mistake could occur in describing the correct legal name of a corporate entity. [ 5 ] The defence argued that the accused company would suffer various prejudices if the motion to amend was allowed to add the correct corporate body conducting the business as the accused party.

The principle prejudice argued, appeared to be that if the defence did not succeed on their motion, the corporation would be subject to prosecution. This form of prejudice has been raised in many cases and situations, and the fact of a prosecution going forward on its merits when it might be otherwise dismissed has not generally been considered to be legal prejudice. On the above authorities and reasoning, the motion to dismiss was not allowed and amendment of the information was permitted.

This amendment was to name the present party which is the correct corporation that carried on the WINROC business on the date in question. Following amendment, the Crown stayed the charges against the original two parties named. The trial then continued against Superior General Partner, Inc. CROWN EVIDENCE [ 6 ] The first Crown witness was Mr. Grant Barnsley who is an Occupational Health and Safety Officer with the Saskatchewan Ministry of Labour Relations and Workplace Safety (LRWS).

He explained that on January 11, 2016 the General Manager of ‘WINROC’ called about an incident and he went to their premises at 1048 Fleury Street in Regina. The business was a warehousing operation for drywall and other construction materials. He and others from the Ministry arrived shortly after the incident. They spoke with employees at the worksite and examined and photographed the scene of an accident. The accident occurred in the unloading of a flatbed semi-trailer unit that was stacked with sheets of a type of exterior-use drywall material by use of a forklift. Twelve photographs were exhibited as P-1.

The photographs showed the trailer unit, remaining sheets of drywall to be unloaded and eight sheets arrayed on the ground that had struck an employee on the head who was assisting in the unloading. Photographs also showed stacks of this material on the truck in detail and some of the material on the truck suggested possible causes of the accident which were elaborated upon later. Mr. Barnsley also had asked for and obtained the training records of the employees involved. [ 7 ] On cross-examination it was stated that Mr. Barnsley was at the scene from 11:40 a.m. until 12:30 p.m.

He said that the condition of sheets still on the truck, and the sheets on the ground suggested that in unloading a stack of sheets immediately adjacent to the sheets that fell, those sheets were caught in some way by the ones being unloaded and were pulled off, striking an employee who was assisting the forklift operator. Both the forklift operator and the assisting employee who were injured gave more evidence on this point. [ 8 ] Mr.

Barnsley indicated that he could issue notices of contravention following an incident such as this where it is apparent that there was a failure to observe required safety procedures. This was not done as a contravention and was not immediately apparent. [ 9 ] The next witness was Mr. Otis Ayre who had terminated employment with the company in question by the time of the trial, but he had been with them for nine years. At the time of the incident, he was the Lead Shipper and manager of staff in the operation.

This involved responsibility for about twenty warehouse staff members, and the principle activity was receiving and shipping of building materials. Although most of his duties were supervisory, he was unloading this trailer that day with the forklift, initially by himself. He was very familiar and experienced with all aspects of the operations at this site, including unloading trailers which he had done many times using a forklift. He described the material being unloaded that day as yellow-coloured exterior drywall sheets transported from Calgary.

It was a cold day with a “bad wind” but these conditions were not stated by him or any other witness to have been a factor in what occurred.

[ 10 ] Mr. Ayre indicated that the employee who was injured was Mr. Jesse Seckinger who had finished a lunch break at about 11:00 a.m. He offered to assist Mr. Ayre to allow the work to proceed faster by removing ‘risers’ that were left in place on the trailer after the sheets were removed. The risers were being removed from the bed of the trailer which was about three feet above the ground. He also described how these risers separated the bundles of sheets from which the strapping holding the bundles together had already been removed (apparently by the driver who delivered the materials).

Risers were left in place after the sheets were removed, so Mr. Seckinger was removing the risers and placing them out of the way. Mr. Ayre said that at one point, a stack of sheets being removed had ‘snagged’ other sheets not intended to be removed, and they were pulled off a stack of sheets still on the trailer and fell striking Mr. Seckinger. Mr. Seckinger had been close to this unloading operation and the event had occurred quickly. [ 11 ] The photographs illustrated the scene of this event, Mr.

Seckinger was concentrating on the removal of risers and it is apparent that he was not aware of the falling material until it occurred. Mr. Ayre immediately came to the assistance of Mr. Seckinger who was under the sheets that fell. He pulled the sheets off him. He was not aware that the sheets in the next stack had become attached to the sheets when he was removing them. He stated that if he had known they were attached, he would have approached the removal differently, but this was something entirely outside of his extensive experience in handling materials of this sort.

The ‘attachment’, or whatever it was that caused the sheets to be pulled off, was not apparent to him at the time. [ 12 ] On cross-examination, Mr. Ayre was led through the safety training and procedures that the company had in place. In a binder of materials entitled ‘Defence Trial Documents’ that became Exhibit D-1, Mr. Ayre’s resume is at Tab 30. The company’s Safe Work Practices and Policies are at Tab 31, Forklift Procedure is at Tab 43 and at Tab 37 is Mr. Ayre’s ‘Student Certificate Report’ that pertains to specific training on a range of safety-related courses that he had successfully taken and passed.

Other documents were referred to relating to safety, and in particular at Tab 34, D-1, another company document logging Mr. Ayre’s safety training is reproduced and was referred to in the examination. It is apparent that a formal safety program was in place in this company, and safety was not a casual or haphazard undertaking. Significant resources were obviously expended on this subject with formal records of employee safety training maintained. [ 13 ] The next witness was Mr. Jesse Seckinger, the employee injured in the accident.

He also worked for the company for eight years in a variety of positions that included shipping, but left the company for other employment in December 2017. Mr. Seckinger had very little recall of the accident as the load had struck him in the head. He recalled the day was a Saturday, and he had a delivery to Yorkton that day and saw the truck he would be taking being loaded. He wished to talk to Mr. Ayre and assisted him removing risers. He was wearing normal safety gear that included protective headgear. He recalled waking up in hospital next.

He stated that he had been injured, receiving a skull fracture and had been in a coma. When he awoke from what he was advised had been a three day coma, he found he was dirty and uncomfortable and wished to go home to shower. Therefore, he checked out of the hospital. He had suffered a severe concussion. In hearing Mr. Seckinger describe what he did, it is apparent that he was fortunate in being a relatively young and physically fit man who made a strong recovery from this injury.

Nonetheless, he was on light duties with the company for a considerable period of time and experienced major effects for some time after. Mr. Seckinger said that he could not drive for six months and that it took a year to make substantial recovery. Some effects include a loss of the sense of taste, appear to be permanent. He suffered stress and anger over the incident. He was accommodated by the company but the work appears to have been paid less than his previous employment and he was not satisfied with the degree of accommodation allowed. It resulted in him and his wife going into debt. [ 14 ] Although Mr.

Seckinger did not have recall of the incident, he is now aware of what occurred and he said he had been aware of the risk that had to be avoided regarding falling objects. He described what he ‘would have’ been doing, and speculated to some degree about how the accident occurred. He described how he could have done the job with some precautions. He did say he remained some distance to the right of the forklift, remaining parallel to the operator.

In direct examination, it was not clear how much of his memory had returned over time, or whether he was reconstructing what occurred based upon information received regarding the incident, or whether he was relating to normal procedures in the situation. Mr. Seckinger has operated a forklift before and was aware that forklift procedures had changed following the accident. He described how the new procedure did not allow removal of the risers by an assistant and ‘spill zones’ to be avoided were identified. This new procedure was set out in writing and was shown to Mr. Seckinger and marked as Exhibit P-2.

He stated he had been aware of risk zones related to cranes when used for unloading. [ 15 ] On cross-examination Mr. Seckinger stated he had been trained on forklift procedures and been tested on them. He stated that WINROC had many safety procedures. He also clarified that he did not have recollection of the actual incident. However, he made it clear that materials falling off a truck while being unloaded was not an event that was anticipated or that he had ever been aware of happening before. He did state, however, that such a thing was always a possibility.

[ 16 ] Mr. Seckinger explained that he preferred to work and took a modified work plan from the company in preference to benefits from Workers` Compensation. This modified work plan is at Tab 39 of the defence documents and Mr. Seckinger acknowledged that plan. He also acknowledged that he had received large amounts of safety training in various areas during his employment with the company. In giving all of his evidence, Mr.

Seckinger was an intelligent and articulate witness who presented his evidence in a straight-forward and unemotional manner without exaggeration or minimization of events relating to the accident or to himself. [ 17 ] This concluded the evidence for the Crown. The Crown position is reflected in the charges laid, namely, that this type of accident event should have been foreseeable and greater steps taken than was the case taken to prevent such an occurrence.

The fact of improved safety procedures adopted afterward reflects this belated understanding which should, however, have been apparent before the occurrence, in the opinion of the Crown. DEFENCE EVIDENCE [ 18 ] The defence began with the evidence of Mr. Brian Kistner, an employee of Foundation Building Materials, Inc. who had been with the WINROC company as the branch manager at the time of the accident. He had spent over 30 years with various building material companies. The only employee who reported directly to him was Mr. Otis Ayre.

He was responsible for 20 –25 employees at any one time and was in charge of sales, payroll and Occupational Health and Safety issues. He was responsible for maintaining a safe working environment and ensuring compliance with safe operating procedures. He said he attended one or two safety meetings a year in Calgary. He was fully aware of the safety program which included monthly safety meetings at the branch office with the workplace safety committee. He was responsible for conducting an orientation program for each new employee that included safety issues and drug and alcohol screening. [ 19 ] Mr.

Kistner described safety procedures that include a full external safety audit every three years by the Saskatchewan Construction Safety Association, plus yearly internal audits. The company branch kept an up-to-date safety manual on the front counter of the business office at all times that covered many topics, including the operation of forklifts. He described how monthly meetings covered various topics including seasonal issues. He referred to Tab 53, D-1 as the Auditor Executive

Summary of 2013 by the Saskatchewan Construction Association which showed a high level of compliance. At Tabs 54 and 56 were the annual audits, the last of which was for the year 2015 (the accident was in early 2016). [ 20 ] Mr. Kistner gave more detail of the business operations and the shipping operations. He stated that he had done an investigation regarding the incident and did not find that any procedures had been done wrongly. Safety procedure in this situation called for checking the load to see that it was even, that no other persons were in the area, each load was taken into the warehouse.

Any assistant was to be in the vision of the operator at all times. Mr. Seckinger referred to Tab 43, D-1, Procedures for Forklift Operations. [ 21 ] He further described how Mr. Seckinger had come to work on January18 (the accident was the 11 th ) but he would not let him return to any duties until he called the company’s senior safety person in Ontario. Certain procedures had to be followed including the development of a plan. This occurred, and Mr. Seckinger was to work in the office for four hours a day. This Modified Work Plan was at Tab 48, D-1 and had to be approved by a doctor. [ 22 ] Mr.

Kistner was cross-examined on the operations, and particularly about unloading. There was a checklist which he admitted could have had more detail. It was not unusual for an assistant to remove the risers, but a change occurred after the accident. Several cases from the Crown Book of Authorities were referred to him, illustrating situations that had gone to court. The question of strict liability and the defence of due diligence was covered and the fact that changes were made with respect to this particular unloading procedure, very soon after the accident. Mr.

Kistner stated that he was not aware precisely of changes made to standard procedures, but that the use of an assistant was not forbidden, but such an assistant was not necessary. He stated that in 33 years in the building supply business, he had never encountered another incident such as the one in this case and he felt it was “not easy” to see why the sheets in question had come off unexpectedly. [ 23 ] Mr. Kistner looked at the photographs, and in particular at #4 and #9. He said he could

see how the incident happened, but that it was very unusual. The ‘spill zone’ program was not developed until afterward and it included a proximity concept that was not part of procedures at the time of incident. The concept of a spill zone and proximity was something found on the internet. The new procedure is to eliminate the possibility of a person being in the spill zone. He stated that Occupational Health and Safety Committees are required by law and that established procedures do not necessarily focus on particular accidents. [ 24 ] The second defence witness was Mr.

Philip Lakatose who was the Safety Manager for Canada for Foundation Building Materials, which included many companies including the company now charged. He described his duties as being responsible for safety measures across Canada in these companies and acting as a resource person for them. He was the coordinator of safety programs and maintained contact with agencies relating to safety outside of the company. He described his training as based on practical experience that was extensive but excluded some commercial trucks and crane units.

He was familiar with the WINROC safety manual which he considered to be comprehensive. He described a system of monthly regional and branch meetings as well as the development and dissemination of standard safety procedures. [ 25 ] Mr. Lakatose referred to Tab 57, D-1which is the comprehensive safety manual for WINROC and other companies in their group that is updated monthly. He also referred to a PowerPoint presentation at Tab 39, D-1 on various issues including hazard recognition in warehousing. He also referred to Tab 43, D-1 on procedures for forklift operations.

He referred to regional meetings held approximately every two years, the last one of which was on September 15, 2015, in Edmonton, records for which were at Tabs 40 & 41, D-1. [ 26 ] Mr. Lakatose had learned of the incident in question one week after its occurrence and worked with the local manager on a modified work plan that has already been referred to in Tabs 50 & 51, D-1. He also in re-direct examination referred to changes in safety procedures and assessments carried out following the incident. In

summary, Mr. Lakatose’s evidence was presented to establish due diligence by the company in the area of safety and in particular, with respect to warehousing and forklift operation. [ 27 ] Mr. Lakatose was cross-examined about aspects of safety and in particular on risk identification and other incidents illustrating risk. He was asked about a term, ‘line of fire’ which he said was not an accepted term in safety literature. It would, however, appear to be similar to other concepts already referred to such as spill zone and proximity risks.

DEFENCE ARGUMENT [ 28 ] As the last evidence called was by the defence, defence argument proceeded first. The defence position was that the charges were not proven in all their elements, and/or that the defence of due diligence is made out. The defence brief outlines at paragraphs 24 the provisions of the relevant Occupation Health and Safety Regulations under which the charges are laid. There are specific regulations covering forklift operations and training at sections 154, 167 and 194. The Regulations are very specific as to training and that is set out in an Appendix, Table 14.1.

The defence accepted that the offences fall in the category of regulatory provisions that are within strict liability and do not require the proof of mens rea or a mental element.

The physical commission of the acts comprising the offence alleged is sufficient, but must still establish beyond a reasonable doubt that the requirements of the legislation were not complied with, and if proven, are subject to the defence of due diligence or reasonable compliance with the duties and requirements. [ 29 ] The defence submits that the failure to provide a safe workplace, a requirement of Charge 2 in the Information, has not been proven (Charge 1 has been stayed).

The defence argues that the fact of an accident is not proof beyond reasonable doubt that there was a failure to “ensure, insofar as is reasonably practicable, the health, safety and welfare at work of all of the employer’s workers". The defence in making this argument, relies on the safety program and procedures that were in place and specific training provided for forklift operation.

They also advance the argument that the fact of modified or improved procedures being adopted following an accident is not proper to consider in establishing a failure to provide a safe workplace before an accident. [ 30 ] This proposition has been considered in case law that was set out in paragraphs 44 and following of the Defence Brief. I accept that there is much authority beginning in the nineteenth century in the United Kingdom, and much more recent authority in Canada and in Saskatchewan, for not treating subsequent safety improvements as a posteriori proof of negligence or non-compliance before adoption.

In my opinion, the cases do not establish this as a rule of law but are a well-established

train of judicial reasoning that points out the fallacy of such reasoning and conclusions. The defence asserts that given the extensive safety program and procedures in place, the factual basis for Charge 2 is not proven beyond reasonable doubt. [ 31 ] Charge 3 alleges the corporation did “fail to ensure arrangements for the use, handling, storage and transport of articles and substances in a manner that protects the health and safety of workers as required by s. 12(

b) of The Occupational Health and Safety Regulations, 1996”. The defence again alleges that the fact of an accident is not of itself proof of a failure to comply with these requirements, nor is the adoption of new procedures for forklift operations. The defence relies upon the extensive evidence of workplace safety programs and procedures that were outlined by Mr. Ayre, Mr. Seckinger and Mr. Lakatose, and the documentary evidence that supported and provided detail for their evidence. [ 32 ] It is pointed out that Mr.

Barnsley in his investigation did not find any indication of a specific failure in the safety of the unloading operation at the time of his investigation. It is possible to see how the drywall sheets in question were pulled off once the adjacent sheets were removed and signs of attachment were then apparent. However, the evidence does not suggest that this would have been apparent before the stack of sheets immediately adjacent to the attached sheets that fell, could have been identified in advance.

It is argued that this incident was not foreseeable, and the case of R v 101009484 Saskatchewan Ltd, 2011 SKPC 31 , 391 Sask R 88 [ 101009484 ] is useful as authority for what constitutes a foreseeable risk, Harradence, J: For a potential danger to be foreseeable, there must be at least a reasonable prospect or expectation that it will arise. "Foreseeable" is not the equivalent of "imaginable". If s-s 2(1)(a)(

i) required not only foreseeing and addressing a potential danger so as to ensure the health and safety of workers, but imagining all the bizarre and unforeseeable situations which might create a further danger, then the employer's liability under this provision would be absolute. Thisapproach would render meaningless the phrase "as far as reasonably practical. [ 33 ] The defence argues that all of the above support a finding that the charges are not proven beyond reasonable doubt and so the defence is not put to the obligation of showing due diligence in the conduct of the operations in question.

However the defence asserts that if there is a prima facie case on the charges, due diligence is made out. The defence reviewed the company’s safety provisions in copious detail with specific references to evidence or documents in their Brief of Law. Due diligence is defined in the Regulations at

section 3-80 and following and sets out the onus on a person charged under the Act to show that there was nothing omitted that was reasonably practical to do based upon current knowledge available. This

section recognizes that what is reasonable must be taken to be at the time of an occurrence, and that post-occurrence knowledge not previously known is not the standard to be met. PROSECUTION ARGUMENT [ 34 ] The Crown filed a written brief and referred to authorities also. The Crown defined the issues and accepted the onus to prove failure to comply with requirements set out in the Regulations beyond a reasonable doubt. If that failure is proven, then the Crown accepted that the defence of reasonable compliance or due diligence is a defence onus that must only be established only on a balance of probabilities.

The Crown reviewed the scope and public purpose of Occupational Health and Safety legislation and cited Regulation 3-80: 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. [ 35 ] The Crown cited the recent case of R v Nalco Champion, 2018 SKPC 61 [ Nalco ] wherein Judge Wiegers reviewed the provisions and purpose of the applicable legislation in Saskatchewan, which case also cited 101009484 Saskatchewan Ltd , supra. These two cases involved more complex circumstances and issues of compliance than are present in the current case under consideration, but they illustrate well the principles and process in considering the issues. [ 36 ] In paragraph 12 of the Crown Brief, the argument is presented based upon Saskatchewan

cases cited, in particular, R v Viterra Inc., 2017 SKCA 51 [ Viterra ] that with a broadly-worded charge as is the case in Charge 2 here, the fact of an accident may be considered prima facie proof of the actus reus . This proposition has been applied in other cases in this province. However, this inference is one of fact and may not apply in all circumstances and it would, of course, leave open the defence of due diligence.

The Crown argues that the fact of this occurrence that caused injury is prima facie proof that there was a failure to do all that was reasonably possible and necessary. [ 37 ] The Crown further argues that the same reasoning would apply to Count 3, though it is more specific and focuses on the particular requirements of handling the material in question. It is not disputed that this incident involved the moving and handling of materials that fell and caused injury to the worker.

The Crown argues that what occurred was something that would not have required extraordinary foresight and diligence to have been prevented. In support of this approach the case of R v Gopher , 2017 SKQB 50 is cited. The Crown asserts that the hazards of a ‘helper’ in this situation were not considered and, if they had been, very obvious precautions would have prevented this occurrence. In support of this the Crown also refers to the fact that within a day the company was able to adopt improved procedures.

The Crown relies heavily on the post-incident operating procedure that was adopted compared to the original operating procedures. [ 38 ] In considering the Defence Brief, I have referred to cases cited there that do not adopt subsequent modifications to practices as decisive or even cogent in determining the question of reasonable foresight with respect to risks. The benefit of hindsight is, of course, very useful in modifying procedures, but the test is whether a risk was reasonably foreseeable before the event.

The Crown strongly argues that these changes may be considered in determining the issues before the court that relate to the question of whether the company took all reasonable steps to ensure safety. It is to be remembered that the word ‘ensure’ is not equivalent to ‘guarantee’. The Crown analyzed the procedures in place for forklift operations with the modified procedures quickly adopted. The Crown suggests that the rapid changes that did not require any new or complex resources may be considered in determining the question of whether all reasonable steps were taken to ensure safety.

I accept that this proposition is not precluded by a rule of law, but that caution must be used in making such an inferential finding. [ 39 ] Owing to the relative ease that new procedures were adopted that would have prevented this accident, the Crown argues that all reasonable steps to ensure a safe working environment were not taken and that the risk in question should have been easily perceived. The Crown challenges the defence proposition that the no worker had encountered this particular hazard before and so it was not foreseeable for that reason.

At paragraph 37 of the Crown Brief, there are factors listed which in the Crown’s view were obvious factors that were known and should have been addressed as reasonable steps to ensure workplace safety and would have avoided this accident. [ 40 ] The Crown submits that all elements of the offence are proven and the defence of due diligence has not been established on a balance of probabilities. ANALYSIS AND CONCLUSIONS [ 41 ] These cases are usually very fact specific, and so it is with this case. Of prime significance, in my opinion, is that Messrs.

Ayre, Seckinger and Kistner all testified at some length about the incident and safety policies within the company. Collectively they had many years’ experience with WINROC that included specific, hands-on experience with the operation of unloading flat-bed trailer units with forklifts. They presented as careful, well-spoken witnesses who gave no impression other than being honest and forthright in their evidence. They did not appear as careless individuals who would take safety procedures or any aspect of company or personal operations carelessly or casually.

None of them had ever encountered an occurrence such as happened on the day in question, and although the accident was explained after it occurred, none of them, or Mr. Barnsley the investigating officer, gave any explanation of why the sheets that fell became attached in the way they were to the sheets being intentionally removed. [ 42 ] Further, the three employees of the company all outlined and confirmed that extensive safety procedures were in place in the company. These safety procedures were communicated regularly and updated with specific mechanisms in place to ensure that occurred.

At no time in their evidence was there anything to suggest this was not a serious concern in the company or that employees were not compliant with existing policies and procedures. [ 43 ] I conclude that WINROC took reasonable steps to ensure a safe working environment

and to see that all employees complied with it, to the extent that hazards and risks were known and recognized. The Crown argument rests primarily on the assertion that the risk of falling material in the situation in question should have been anticipated and guarded against. The Crown cites the fact that relatively simple and rapid changes were made after the accident that would have prevented this occurrence.

The fact of the accident and the simplicity of precautions that could have been taken that were quickly adopted is not, in my opinion, proof of a failure to ensure a safe work environment as required in Charge 2, or of specific failures as required in Count 3. This was an extraordinary occurrence without precedent as stated by the experienced witnesses with the company. I make this finding, notwithstanding that in appropriate cases the fact of an occurrence may be sufficient to establish the failures and omissions amounting to a breach of legislated safety requirements as outlined in the case of Viterra .

This branch operation of WINROC had been diligent in maintaining safety for all known risks in this workplace, and their procedures emanated from higher company policies that were informed by safety procedures adopted by national bodies.

There was regular auditing for compliance and employees at the branch level were aware of safety requirements. [ 44 ] If I should be wrong in concluding that the elements of the charges are not proven, and there is a prima facie case for the company to meet to prove due diligence, I would also conclude for the reasons outlined above, that due diligence and reasonable compliance by the company was present. I rely on the cases cited above in argument, particularly on 101009484 and Nalco notwithstanding that measures to prevent such an accident as occurred here are relatively simple and were adopted with ease.

However, the risk involved was not foreseeable, in my opinion, and the reason for the attachment of the materials that was pulled off has not been explained in the sense of why the attachment occurred. [ 45 ] In

summary, the factors in favor of finding that neither charge is proven beyond a reasonable doubt, or in the alternative that due diligence was observed are: a. The extensive safety program in place that was kept up-to-date with regular on-going training and was regularly audited by knowledgeable persons; b. The specific training given to employees including to the two involved in the accident in question; c. The fact that no employee, all of whom were either experienced or very experienced, had encountered an occurrence such as this type of accident before; d.

The fact that the procedures for forklift operation were observed, and in spite of an assessment of the load to be removed, no abnormalities were identified and the abnormality that precipitated the accident was not observable until the adjacent stack of material was removed. This was the direct cause of the ‘spill’ of materials that struck Mr. Seckinger, but the cause of the attachment that pulled those materials down unexpectedly was not determined. e.

Employees were wearing the prescribed safety gear and equipment, and safety procedures were known and procedures readily available for reference. [ 46 ] Accordingly the charges stand dismissed. Dated at the City of Regina, this 20 th day of June, 2019 _________________________ B.D. Henning, J