2019 ONCJ 223, 2019 ONCJ 223

CITATION : Ontario (Ministry of Labour) v. Alpa Lumber Mills Inc. , 2019 ONCJ 223 DATE : March 28, 2019 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- ALPA LUMBER MILLS INC. and VAN KHAM SICHANTHA REASONS FOR JUDGMENT Duncan J. Introduction: [ 1 ] This is an appeal from conviction and a Crown appeal from sentence under

Part III of the Provincial Offences Act. [ 2 ] The Appellant Alpa Lumber Mills and the Appellant Van Kham Sichantha , a supervisor at Alpa, were charged together on an information that: Alpa Lumber Mills, on or about May 6 2014 failed as an employer to ensure that the measures and procedures prescribed by s. 26 of O. Reg. 851/90 were carried out at a workplace, contrary to s. 25(1)(

c) of the Occupational Health and Safety Act Van Kham Sichantha on or about May 6 2014 failed as a supervisor to ensure that the measures and procedures prescribed by s. 26 of O. Reg. 851/90 were carried out at a workplace, contrary to s. 27(1)(

a) of the O.H.S.A. [ 3 ] The applicable regulation and

section in both cases, O.Reg 851/90

section 26, reads: 26. A machine shall be shielded or guarded so that the product, material being processed, or waste stock will not endanger the safety of any worker. [ 4 ] The Appellants were tried over three days in May 2016 following which judgment was reserved. [ 5 ] On October 11 2016 the Court released lengthy reasons for judgment concluding in conviction of both Appellants. Those reasons are reported at [2016] O.J. No. 6041 ; 2016 ONCJ 675 . On January 10 2017 the Court imposed a fine of $15,000 on Alpa and $1500 on Sichantha.

[6] Alpa and Sichantha have appealed conviction; the Crown has appealed sentence with respect to Alpa only. [7] The appeals were originally argued before Stribopoulos J in October 2018 but before judgment could be given, his Honourwas appointed to the Ontario Superior Court. An unfortunate gap in the Courts of Justice Act left him without jurisdiction to render judgment so the appeals were argued again before me on February 20th 2019. I was provided with a transcript of the argument beforeStribopoulos J in addition to the usual material filed on appeals. After hearing counsel on both sides, judgment was reserved. The Scope of Review: [8] On an appeal from conviction under

Part III of the POA, the Court may allow the appeal where it is of the opinion that thejudgment appealed from

i) is unreasonable or cannot be supported by the evidence or ii) involves an error of law or iii) there has been amiscarriage of justice:

Section 120 POA. [9] This scope of review mirrors that contained in the Criminal Code in relation to appeals from conviction (Section 686 CC)which has been much considered and interpreted. With respect to a verdict being unreasonable or unsupported by the evidence thefollowing principles have been established: • The appeal court must to some extent consider and reweigh the evidence. However, it is not to simply substitute its view for that ofthe trial judge.

Rather the test to be applied is whether the verdict is one that a trier of fact properly applying the law and acting judiciallycould have reached: R v Yebes [1987] SCR 168; R v Biniaris 2000 SCC 15 , [2000] 1 SCR 381. • Appellate review under this heading also involves scrutiny of the trial judge’s logic and reasoning process.

Where the trial courtdraws an inference or makes a finding of fact that is incompatible with evidence that is neither contradicted by other evidence norrejected by the judge then that finding is unreasonable and, depending on the importance of that finding to the verdict, the convictioncannot stand: R v Beaudry 2007 SCC 5 , [2007] 1 SCR 190: R v Lorher 2004 SCC 80 , [2004] 3 SCR 732; The Evidence: [10] The evidence was very thoroughly and accurately set out in the trial judgment and will not be repeated here but for thefollowing brief

summary. [11] The accident: A large splinter of wood approximately 18 inches long and a bit less than a broomstick in diameter was ejected athigh velocity from the input end of a large industrial saw (rip saw #1) being used at the Alpa facility. The spear travelled at least 10 feetand struck an employee, Mr. Ma Phao, who was working on the output end of another identical saw (rip saw #2) situated 10 to 24 feetaway from the first. The spear entered his arm near the elbow, piercing three layers of clothing and imbedding deep into his flesh. Hewas taken to hospital.

His injuries were serious and resulted in lasting nerve damage and continuing pain. He has never returned to work.Clearly had the spear hit him elsewhere on his body it could have been much more serious or even fatal. [12] A loud and unusual noise was heard coming from the machine just before the spear was ejected. [13] Ministry of Labour inspectors were soon on scene and issued a stop use order on the saw. An outside consulting engineer, Mr.Charron, examined the saw and the scene within the next few days and found the saw and its safety mechanisms to be working properly.He declared it to be safe.

The stop use order was lifted. [14] Mr. Charron later gave a written report and testified at trial as a defence witness. He described the saw and its safety features indetail and presented photos and diagrams to assist. [15] The saw itself was manufactured in Germany in 2007. It is about 8 – 10 feet long and about 6 feet tall at its highest point. All ofthe moving parts including the cutting blades are housed inside a dome that can be lifted for cleaning and maintenance but otherwisemust be closed for the machine to function.

The only openings are at the input where the wood is fed into the saw and at the outputwhere the sawed lumber emerges. These openings are protected by metal guards or fingers that completely close the openings unless anduntil the piece of wood being sawed lifts them up (or in one case pushes them down). But when that occurs only such fingers ascorrespond to the width of the wood are lifted and the remaining fingers remain closed.

So when in operation, the closed fingers and thewood that is being sawed itself cover, or should cover, the opening. [16] The finger guards are also shaped in such a way that those that have been raised (or lowered) and are in contact with the woodwill dig into the wood if it moves backwards as can occur when the cutting blade binds and kicks back the wood.

The fingers thereforeserve a dual purpose – kickback protection and splinter protection. [17] The saw came equipped with four rows of these guards – an upper and lower set at the input, another upper row inside thedome situated between two pressure rollers that keep the wood down against the upward rotation force of the saw blade and a fourthupper row at the output opening. [18] In addition, Alpa had installed a piece of plywood across the input end of rip saw #1 with a small mouse-hole like cutoutthrough which the lumber was fed.

This was done because Alpa used the saw only for cutting wood that was not nearly as wide as theinput opening on the saw itself. Accordingly, much of the opening was always closed by the plywood as well as the finger guards. [19] With all these safeguards in place, the engineer Mr. Charron was “baffled” as to how the accident could have occurred. Itwould seem that not only must there have been a failure of the finger guards but that it would have had to occur simultaneously in at leasttwo of the rows of guards.

Further the point of failure would have to be in line one row to the other for an object that long to passthrough. It would have to get by two large rollers as well. Finally it would have to get past the external plywood through the furtherreduced opening. No witness who worked at Alpa – including Mr. Phao who had worked there for 34 years – had ever seen such asplinter or piece of wood ejected from this or any other similar saw

[ 20 ] However the manufacturer’s instruction manual for the saw specifically mentioned the risk of splinters and recommended that operators not stand “immediately” in front of the opening. It went on to say that that risk (and others) could be eliminated by proper maintenance and cleaning. The Cause of the Accident: [ 21 ] There was no specific finding as to what caused the accident, that is, what permitted the large splinter to escape a seemingly inescapable fortress. [1] Mr.

Charron’s inspection noted that two adjacent finger guards “stuck” in the up position until the next one was touched, whereupon they swung down as designed. He didn’t seem too concerned about this and thought that if the machine had been running that the vibrations would have eliminated this condition.

Further, even if they had stuck it would not explain how the splinter got past the other redundant barriers. [2] [ 22 ] It is also the case that the drop-back function of finger guards would not come into play as long as a piece of wood was passing them – and the evidence was that wood was fed continuously one board after another into the machine. [ 23 ] Despite these uncertainties, the sticking fingers scenario became the dominant backdrop to the due diligence discussion both at trial and appeal.

The sticking could be caused by debris, dust and wood chips getting into the mechanism of the guards and the small spaces between them hindering their intended drop-back movement. Therefore proper cleaning of these areas became the major point in assessment of the defendants’ due diligence.

The trial Court’s findings re cleaning, maintenance and due diligence: [ 24 ] The evidence summarized above gave rise to the main issue to be resolved at trial – whether the saw was properly cleaned and maintained or, more correctly, whether the defendants were duly diligent in the steps that they took to ensure that the machine was cleaned and maintained. [ 25 ] The trial judge first referred to the manufacturer’s direction that: 78 ….. the manufacturer expressly states that the anti-kickback teeth or fingers should be frequently checked to see that they are in good working order .

And, that they should be swivelled "several times a day" and that any chips and sawdust present should be removed, since it can cause the fingers to jam. ….. [ 26 ] He then thoroughly reviewed the evidence of Alpa’s cleaning and maintenance procedure: 89 Furthermore, one of Alpa Lumber's workers, Vonusoth Sichantha, had testified that he was responsible everyday to clean the rip saw machines at the Alpa Lumber plant four times a day and to check and replace the saw blades in all the machines.

He also said he had cleaned the inside of the machine and had checked the saw blade of Rip Saw #1 on May 6, 2014, and that he had perform these tasks at the start of his shift at approximately 6:00 a.m. The shard of wood that had escaped from Rip Saw #1 had injured Ma Phao at approximately 8:00 a.m. 90 …. 91 Vonusoth Sichantha also testified that he starts work at 6:00 a.m., and that before the other workers arrive for the start of the work day at 7:00 a.m., his job is to clean and set up all the rip saw machines, as well as checking and replacing the saw blades in the machines when it is necessary to do so.

He also said he does this everyday. 92 Furthermore, in outlining his routine, Vonusoth Sichantha said he cleans the inside and the outside of the rip saw machines daily by using a power blower. He also said he looks at the saw blades in the machines and blows everything. To clean the machines, he said he uses a device that blows air. In particular, he said he opens the rip saw machines and checks the blades really well to see that the blades are not burned, or whatever, and then blows out the rip saw machines.

In addition, he said that if he sees a problem with the blades, he then has to change the blade and put on a new one. He also said he cleans everything nicely, including the chain, rollers, and guards. Furthermore, he said he also makes sure everything is moving well . He also said he blows the chain so there is no dust on the chain and cleans and blows everything out, as well as checking that the guard and rollers are moving well and keeps cleaning them to make sure.

He then he said he starts the machine so that it turns really slow and then blows the outside of the rip saw machines, cleans up, and then he is done. …….. 97 Furthermore, Daniel Sperduti , the Alpa Lumber operations manager, testified that the plan to prevent any worker from being injured by splinters or kick-backs, included training the worker, who fed the lumber into the rip saw, to stand to the side, and assigning and designating a worker to clean and blow out the dust and wood chips from the inside of the rip saw machines three times a day and to also inspect the rip saw machines three times a day , and to replace dull or poor saw blades when it was necessary to do so. [ 27 ] But having reviewed this evidence, the learned trial justice then concluded that there was “no evidence” that the required cleaning and maintenance was done and that such omission amounted to a failure to take all reasonable steps and to exercise due diligence: 98 However, there has been no evidence adduced by the defendants about a system that had been established for someone to regularly check and to swivel the anti-kickback teeth or fingers individually and splinter guards in the rip saw machines to determine if they were working badly or not at all, and for someone to record these regular checkups for the adequacy and functioning of the anti-kickback teeth or fingers and splinter guards in the individual rip saw machines at the plant. 99 And, because Charles Charron, the professional engineer, had testified in particular that he had observed a broken anti-kickback finger on the output side of the saw blades during his inspection conducted on Rip Saw #1, and because the 2007 Operating Manual for

Rip Saw #1 had required someone to swivel the anti-kickback teeth or fingers and the splinter guards in the rip saw machines severaltimes a day to ensure that they were not working badly or not at all, then taking all reasonable steps required that Alpa Lumberassign someone to check and swivel the anti-kickback teeth or fingers and the splinter guards in the rip saw machines severaltimes a day to ensure that the risk of the kickback of splinters and fragments of wood would not be caused by missing, broken,faulty, or improperly functioning anti-kickback teeth or fingers or splinter guards.

The finding re cleaning and maintenance was unreasonable: [28] With great respect, it is my view that this conclusion by the trial justice was contrary to the evidence that he had justsummarized.

While the witness, who spoke broken English, did not track the exact words of the manual and use words such as “swivel,”his description of what he did was indistinguishable from the manual’s requirements.[3] [29] It is important to note that the witness was not challenged on this evidence in cross-examination by the Crown nor did the trialjustice reject this evidence or make any adverse finding of credibility. [30] Where an inference or finding of fact is at odds with the only evidence touching the issue, the finding is unreasonable.

Torepeat what was written above para 9: Where the trial court draws an inference or makes a finding of fact that is incompatible with evidence that is neither contradicted by otherevidence nor rejected by the judge then that finding is unreasonable and depending on the importance of that finding to the verdict, theconviction cannot stand.

Was the Verdict Unreasonable? [31] The Crown argues that even if the trial judge erred in his analysis and made an erroneous or unreasonable finding in thatregard, the verdict is still supportable on alternative bases. [32] First The Crown submits that the fact of the accident itself demonstrated that the saw must not have been properly maintainedand cleaned since the accident could only have happened if debris prevented the fingers from functioning as designed – res ipsa loquitur.I can’t agree.

If debris clog was in fact the cause of the accident, it is self-evident that such debris could be produced at any time whilethe saw was being used – including, in theory, immediately after a thorough and proper cleaning, with the first board that is put through.The machine can’t be cleaned constantly or after every board is cut. Therefore, the occurrence of the accident does not in itself indicateinadequate maintenance or cleaning or rebut the appellants’ assertion of due diligence. [33] The standard is not one of perfection.

There was no finding by the court or submission by the Crown that the frequency ofcleaning was less than it should have been.

The extended history of accident free operation would suggest that the frequency of cleaningemployed by the company was appropriate. [34] Next the Crown argues that apart from cleaning and maintenance the learned trial justice found negligence in two alternativerespects – failure to align the saws in such a way that ejected splinters would not travel in the direction of other workers and failure toprovide a barrier to protect workers in the vicinity of the saw. [35] With respect to the alignment point, in my view it did not come within the scope of the charge that the appellants faced, whichwas specific in relation to guards and shields for machines.

It did not charge a failure to take other general safety measures in the plant. [36] With respect to both points, it is my view that they cannot be divorced from the unreasonable finding of negligence re thecleaning and maintenance. That finding was premised on the foreseeability of risk of kickback and splinters identified in the manual. Butthe manual went on to say that “all these remaining risks can be avoided by following the safety instructions” – which included thechecks and cleanings.

In other words, there was a risk if proper maintenance was not done; there was no identified risk if propermaintenance was done. Accordingly the foreseeability of risk assessment was dependant on an accurate determination of the cleaningand maintenance issue. As per above, that determination was unreasonable. Therefore the verdict cannot be sustained on these alternativebases. Error of Law: [37] In view of the above conclusions it is unnecessary to go further.

However, in the event I am in error I will briefly discussanother point. [38] Even assuming that the trial justice perceived a difference between the requirements specified in the manual and what was doneby Alpa and its workers, it is my view that he erred in not identifying that difference in his reasons.

While the reasons were extensivethey failed to address the critical point on which the judgment turned, thus depriving the parties of the central reason for the decisionand depriving the appeal court of the ability to conduct meaningful review: R v Sheppard 2002 SCC 26 , [2002] 1 SCR 869. [39] Further it is my respectful view that the trial justice erred in placing near exclusive focus on the requirements of the manual.The issue was not whether the manual was strictly followed, though that was important. The issue was whether what the Appellantsactually did failed to amount to the exercise of reasonable care.

It was incumbent on the trial judge to make a determination of duediligence based on the latter, not just on compliance with the manual. Order: [40] The usual order made on appeal when a verdict is found to be unreasonable is an acquittal, for obvious reasons. For error oflaw, a new trial is usually ordered. However in this case, even if the error in law was the only meritorious ground, it is my view that a

new trial should not be ordered. The appropriate order is somewhat discretionary (R v Dillabough (1975) (ON CA),28 CCC 2d 482 (OCA) and considering the age of this case, considering that it is a very close case at its highest, and considering that theappellants were put to additional expense by having to present the appeal twice, it is my view that the ends of justice would be bestserved by bringing these proceedings to a final conclusion. [41] The appeal is allowed. An acquittal is entered with respect of both Appellants. March 28 2019 B Duncan J Graeme Adams for Crown Respondent; Chris Foulon, Behzad Hassibi for the Appellants