Her Majesty the Queen - v. –, 2021 SKPC 30

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 30 Date: April 14, 2021 Information: 90215246 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and – Pilosio Canada Inc. and Banff Constructors Ltd. Appearing: Buffy Rodgers and Sandeep Bains For the Crown Jonathan L. Frustaglio For the Accused, Pilosio Canada Inc. David Myrol For the Accused, Banff Constructors Ltd. JUDGMENT B.M. KLAUSE , J [ 1 ] The accused corporations are charged as follows: 1) Pilosio Canada Inc. of 400 3 rd Avenue S.W. Calgary, Alberta, at or near Saskatoon, Saskatchewan on or about the 21st day of July, 2016 did:

(1) Being a supplier, fail to ensure, insofar as is reasonably practicable, that any plant supplied by the supplier to any owner, contractor, employer or worker for use in or at a place of employment is safe when used in accordance with the instructions provided by the supplier

and complies with the requirements of this Part and the Regulations made pursuant to this Part, as required by subsection 3-15(

a) of The Saskatchewan Employment Act resulting in the death of a worker, Eric Ndayishimiye , contrary to subsections 3-78(

g) and 3-79 of The Saskatchewan Employment Act .

(2) Banff Constructors Ltd. Of 10840 27 th Street S.E., Calgary, Alberta , at or near Saskatoon, Saskatchewan on or about the 21st day of July, 2016 did: Being an employer at a place of employment, fail to make arrangements for the use, handling, and transport of trolleys in a manner that protects the health and safety of workers as required by subsection 12(

b) of The Occupation Health and Safety Regulations , 1996 resulting in the death of a worker, Eric Ndayishimiye, contrary to subsections 3-78(

g) and 3-79 of The Saskatchewan Employment Act .

(3) Being an employer at a place of employment, fail in the provision of any information, instruction, training and supervision that is necessary to protect the health and safety of workers at work as required by subsection 12(

c) of The Occupational Health and Safety Regulations , 1996 resulting in the death of a worker, Eric Ndayishimiye, contrary to subsections 3-78(

g) and 3-79 of The Saskatchewan Employment Act. The Case for The Crown Context [ 2 ] The Crown called a total of 13 witnesses in the context of the KGB voir dire and trial proper with all evidence eventually applied to the trial proper. Several of the witnesses were called essentially for the purpose of establishing that Gerard McLaren’s statement should be admitted on the trial proper as Mr. McLaren was currently residing in Ireland and was refusing to testify via video or audio link nor was he prepared to travel to Canada.

At the conclusion of the Crown’s voir dire , I admitted the previous unsworn statements of Mr. McLaren on the trial proper. Crown Evidence Kresimir Benic [ 3 ] Mr. Benic is employed as a process server and was called to advise of the efforts made to unsuccessfully serve Gerard McLaren with a witness subpoena. Despite several efforts, he was unable to effect service. Kelvin Kliewer [ 4 ] Kelvin Kliewer is employed as an Occupation Health Officer whose job it is to inspect construction sites in Saskatchewan to ensure compliance with the various regulatory statutes.

On July 21, 2016 he received a report of an accident at the Jim Pattison Children’s Hospital which was under construction in Saskatoon. He attended, inspected the site, took photographs of the area (Exhibit P- 2 Tab 1 Photos 1887 through 1926) and subsequently interviewed Gerard McLaren in the company of Stephen King, a friend of Gerard McLaren and his immediate supervisor.

The accident involving the ST150 cart resulted in the death of Eric and as a result of his investigation, a Notice of Contravention was issued to Graham Construction as the Prime Contractor of the Jim Pattison Children’s Hospital and a stop work order. He was unfamiliar with this particular piece of equipment. Sgt. Lorne Keen

[ 5 ] Sgt. Keen is a member of the Saskatoon Police Service who was deployed to the scene and took several photographs which became a full exhibit located in P-2 Tab 3. They are self explanatory. Maurice Murphy [ 6 ] Mr. Murphy is an employee of Graham Construction [ Graham ] and describes Banff Constructors Ltd. [ Banff ] as being a part of Graham as Banff supplies the work force for Graham projects. He was on the scene on the day of the accident and did not know nor had he ever worked with Eric. On the date of the accident, he helped to lift the collapsed ST150 cart off Eric.

He testified that the top half of the cart was on Eric, then they dragged it to the side. Prior to the accident, he described it as a normal pleasant workday with nothing unusual occurring. He described Mr. McLaren as being very upset. In cross-examination, he agreed that he never worked with the cart nor did he receive any training in that regard. He did opine that rules are to be followed at all times to prevent accidents and had observed people using the cart and whenever he saw the cart being used it was being operated by a team of two people.

His crew had no training on the carts because they did not use them. He was not aware of any safety issues with the cart. Graham supplies the safety officer as Banff does not have a safety officer. [ 7 ] In cross-examination by Banff , he agreed that he has no knowledge of the contractual relationship between Graham and Banff but that they follow Graham’s safety systems and directions. He always saw the same team operating the cart and never saw one person operate the cart. Joey Yusefawich [ 8 ] Joey Yusefawich was employed by the defendant Pilosio Canada Inc. [ Pilosio ] between 2012 and 2018.

Pilosio is a shoring and forming manufacturer and supplies equipment to the construction industry, in particular, a modular system to hold the concrete pour. The ST150 is described as a modular table system with aluminum legs. In essence, the cart is used to support a plywood/wood table at the top which supports the concrete drying above it until the concrete has cured. Supports are installed once the table is in place and the cart is then wheeled away to lift another table. It is also used to strip the table down once the concrete has cured.

The cart has four wheels which rotate 360 degrees and needs to be operated by two people as both sides need to be raised simultaneously and moving the cart, two people need to operate it so it does not run away. His company supplied four carts to Graham when Graham was building the Grande Prairie Hospital.

The rental agreement between Pilosio and Graham is dated March 10, 2016 and is found at Tab 11 of P-2. [ 9 ] Under cross-examination by counsel for Pilosio , he advised that they always recommend that two people be used to move the cart and that they had advised Graham that they would provide training on the cart and did so. He insisted that they rented to Graham and not to Banff . In Exhibit D-3, clause 10 provides a specific prohibition against subleasing. He testified that Graham never advised that Banff would be using the equipment and he never knew they were using it until this action commenced.

He maintained throughout his evidence that two people were needed to operate the cart at all times. (Transcript Volume 2 at pages 240 - 243). Graham had been provided with training at the Grande Prairie site. [ 10 ] In cross-examination by Banff , he agreed that Graham was one of Pilosio’s biggest customers and that they had never had a problem with the cart collapsing. He identified Exhibit D-6 as the Pilosio manual and agreed that it appeared to be the manual given to Graham Construction.

He agreed that in the manual the diagrams only show one person next to the cart but agreed that if it was to be redone, they would ensure that there were two people on the diagram. In reference to Exhibit D-9 he agreed that the technical newsletter indicated that the cart was to “Operate the two telescopic devices uniformly” and “take up the load symmetrically” means two people were always needed to operate the cart but also agreed that there were no instructions in regard to one locking pin only when the cart was moved.

There was also no caution as to what would happen in regard to the castor wheels if they turned inward. [ 11 ] In re-direct by Pilosio , he agreed that the diagrams in the manual showing just one person were for illustrative purposes only and agreed that all the emails in regard to the cart rental were between Graham and Pilosio - Banff was not part of the email chain. Emerson Klatt [ 12 ] Emerson Klatt was a fourth-year carpentry apprentice working at the Jim Pattison Children’s Hospital on the day of the accident.

He was on the stripping crew which generally consisted of himself, plus Stephen King and Gerard McLaren. He is familiar with the Pilosio cart which had arrived on the site two months prior to the accident, in pieces on pallets. They had to assemble it and it was missing pins which allowed it to move. They ended up making some pins with threaded rods. The cart would pivot for moving it into tight places on the job but when moving it without pins it would turn and you would have to hold it in place.

The cart was very difficult to move with one person and although it was possible to move it with one person, it was much easier to move with two people.

In his experience, the cart could be safely operated if operated properly but you needed someone on each side of it to move it properly. He knew Gerard McLaren who he described as very emotional after the accident. Gerard told him that both pins had been pulled, then the cart’s wheels hit a rock on the deck, the cart collapsed, he jumped back and the cart narrowly missed him. He looked back and saw Eric lying on the ground pinned by the cart . Mr.

Klatt testified that he had never received any training with a manual or anything else. [ 13 ] In cross-examination, he testified at length about the missing pins when the carts first appeared on the site and that they had to manufacture their own pins to operate the cart. In his experience, the pins they made were just as effective as the manufactured pins and that it was removing the pins that caused the accident and not the pin itself. He agreed that on-site training would have been very useful, that he had never seen a manual attached to the cart.

He was not aware of who rented the cart or to whom and was not aware of any other available training nor was he advised by any of his supervisors that training was available. He received no instruction from Graham in regard to the operation of the cart and never worked with the carts at the Grande Prairie Hospital. In conclusion he agreed that they “played with the cart a little bit” before using it but never had access to a manual or any training on the proper use of the cart. [ 14 ] In cross-examination by Banff , he agreed that Stephen was the lead hand and a Red Seal carpenter.

He denied ever seeing Exhibit D-6 “the manual” or D-9 “the technical newsletter” with respect to the cart. He was examined exhaustively about the safety protocols in place by Banff including the Field Level Risk Assessment and the culture of safety on the worksite. He maintained that the cart pins did not fail and that they did not just fall out, they had to be pulled out. If all the pins were in their location it would just stop. If the pins were out, it would twist and if two people had been on the cart when the pins were pulled, it would not have fallen.

In his opinion, when you pull out both pins you need two people to steady the cart especially if there is debris on the floor which could affect the wheels as the cart moves. Stephen King [ 15 ] Mr. King has Irish and Canadian qualifications as a journeyman carpenter and was employed by Banff between October 2015 to October 2018 as the lead hand whose job it is to manage the crew under him managing the concrete pour at the Saskatoon Children’s Hospital. He was working on July 21, 2016 at the time of the accident.

The job that day was to strip the Pilosio tables and he was working with Gerard McLaren, Anthony Hnatuk, Emerson Klatt and Jordan Daniels. They were stripping the Pilosio tables to get ready for crane time which is when the tables are moved from floor to floor by an exterior crane. Sometime around 3:00 p.m. he left the area on a coffee break and subsequently heard an ambulance call. He re-attended to the site and saw the Pilosio cart laying down and then saw Eric laying up against a box being attended to.

He went to find Gerard McLaren who was very distraught as were most members of the team. [ 16 ] He has not seen or talked to Gerard McLaren essentially since that day. Stephen was familiar with the Pilosio cart but had not seen one prior to the job at the Children’s Hospital. No one taught him anything about the use of the cart. He indicated that they had arrived on the site packed flat and they had to put them together prior to their use and they did some brief experimentation with them.

He was not supplied with a manual but was supplied with what appeared to be a three-page photocopy that might have come out of another book or binder. [1] [ 17 ] He did not recognize Exhibit P-2 Tab 13 which is entitled Technical Newsletter ST150 Table Cart. [ 18 ] The carts were missing some pins when they arrived, so the team manufactured replacement pins out of threaded rod. Additionally, the tops of the cart were added to the cart - the T piece was manufactured by Graham or someone else which just showed up on the site.

He received no information about precautions to take with the cart and indicated it moved easily without a table on it but once loaded it became quite heavy and difficult to maneuver. It was much easier to move with two people handling it. Each cart had four pins and two pins could be pulled to allow the cart to enter a tighter space. [ 19 ] In cross-examination by Pilosio he agreed it was uncommon to pull both pins at the same time and he doubted that one person could pull both pins simultaneously.

He agreed he received no training on the cart from Graham or Banff and that Graham and Banff would have been aware of that and that neither Graham or Banff ever offered any training on the use of the cart. The carts simply arrived on the floor and they were told, by either Daryl George or Kent Kenouse, to put them together and use them. Neither individual offered any training. He never saw or read or was given a training manual. Daryl George was the General Foreman on the job site and Kent Kenouse was the Superintendent at the site.

He was unsure who Kenouse’s employer was and unsure about the relationship between Graham and Banff other than Banff supplies all the labour to Graham for their projects. Essentially, he agreed that whatever they learned about the cart was from doing dry runs themselves there was no formal training ever offered. He agreed that with what he now knows, the cart should not be operated by one person with both pins removed although he agreed that was done on the worksite.

[ 20 ] In cross-examination by Banff , he agreed he is employed by Banff and reports to Daryl George. Graham was in charge of safety on the site and Banff follows Graham’s safety systems. Much of his evidence was to the effect that safety was a primary concern on the site, that he felt comfortable with the cart, that with both pins in place the cart was stable and with one pin fairly stable but two guys would be able to control it. He never felt rushed by his employer to get things done and there was never a compromise to safety.

Jordan Daniels [ 21 ] Jordan worked as a labourer for Banff at the Children’s Hospital for a very brief period of time and was working on July 21, 2016 when the accident occurred. He was using the cart from time to time when stripping forms without any formal training. In his experience it was safe with two guys using it, you would usually only pull one pin out at a time and you certainly would not pull two pins out if the cart was fully loaded. He would always have a partner with him when he pulled a pin.

He was not involved in building the cart and did not see any manuals about its operation. [ 22 ] In cross-examination by Pilosio he agreed he was employed with Banff but it was a Graham site and with Graham trucks and Graham equipment all the time, it could occasionally be confusing. Emerson had given him some training or advice on the use of the cart specifically not to pull both pins at the same time. And to try to have two people on the cart at all times. He had no prior experience with the cart and he had advised his supervisor, Stephen King, that he had no experience with the cart.

No one from Graham gave him any training on the use of the cart and he relied on his coworkers for advice. He was unaware that Pilosio had rented the equipment to Graham and not Banff ; he was unaware of any training being offered at the Grande Prairie Hospital site as he never worked on that job. [ 23 ] In cross-examination by Banff , he agreed that safety hazards were discussed often if not daily and it was encouraged to raise any safety concerns that any member of the crew had.

He agreed that his immediate co workers and supervisors were always concerned with safety and were receptive to any issues or concerns raised. David Milo [ 24 ] David Milo was employed as an Occupational Health Officer for nearly 27 years and was working on the date of the incident. He attended the scene and did a subsequent witness interview of Gerard McLaren in his vehicle. It was an informal interview, but it was recorded and Mr. McLaren was aware of that. This statement was transcribed and is now Exhibit P-4.

His statement was not particularly helpful although he did briefly indicate that two people usually moved the cart but that, on occasion, he had moved it alone. He may have seen some sort of a manual but could not recall details of the manual and did recall that there was no training that he could recall. He had never seen a cart collapse. Perhaps the most succinct definition of what actually happened on the date of the offence is Mr.

McLaren’s explanation that he had positioned the cart beside the column and because it would not fit into the space, he took out two pins and the cart then collapsed towards him while he was maneuvering the front leg of the cart. [ 25 ] The cross-examination of Mr. Milo concerned the admissibility of Mr. McLaren’s statements in these proceedings as Mr. McLaren was not present to testify. Mr. Milo agreed there was no warned statement, no suggestion that Mr. McLaren would be charged with any offence and no compulsion. He took no notes on Mr. McLaren’s demeanour.

David George [ 26 ] David George is a carpenter by trade and has worked for Banff for nine and a half years. He is the General Foreman which he describes as the bridge between management and the workers. He worked at the Saskatoon Children’s Hospital and was the General Foreman on that project. He knew Eric who he described as a nice kid with a good attitude who was always eager to learn. Eric had been assigned general clean up on the job-site at the time of his death. He testified that he had met with Joey Yusefewih to finalize the agreement using their framework but he never saw him again.

He had no hands-on involvement with the carts and no training on the carts. He believed that there were some manuals in the site office but when the carts arrived on-site they were missing pins and they added some extensions of four to six inch square steel tubing to the cart but was unsure where they were fabricated. In his opinion the carts were pretty much self-explanatory. [ 27 ] In cross-examination by Pilosio he agreed that he did not advise Pilosio of the missing pins but that while he never operated the cart personally, they seemed like a straight-forward piece of equipment.

Graham never gave him any instructions on the use of the cart nor did he train anyone on the cart and he was unaware of what training could be offered. In his experience Banff and Graham were “pretty tight” as Graham is the General Contractor and Banff is the sub contractor. He never asked any of his employees if they had any

experience with this equipment as this was not a piece of powered mobile equipment. [ 28 ] In cross-examination by Banff , he testified that his crew was a very experienced crew especially Mr. King and Mr. McLaren and he had no concerns about the carts or the men handling them. Graham had safety specialists on the site daily and were always available. King was a trusted and valued employee who was “very engaged and committed to safety.” David Gorgchuck [ 29 ] David Gorgchuck is a Senior Investigator with Occupational Health and Safety and has been with them for four and a half years.

He was brought into the investigation to assist in gathering information and dealt with Graham extensively who were very cooperative. He was present at the Gerard McLaren interview with David Milo, interviewed Joey Yusefewich and examined the table carts at a Graham warehouse. He never did the find the extensions that had been added to the cart. He principally dealt with attempting to get Mr. McLaren to cooperate with the investigation. He outlined what he did in order to contact Mr. McLaren and have him give another statement or return to Canada to give evidence at this hearing to no avail. In his words, Mr.

McLaren wanted nothing to do with the investigation, that he was suffering from PTSD. Mr. McLaren would not assist any further. [ 30 ] In cross-examination by Pilosio he indicated he did not know where the carts were at present nor does his department have the resources to seize and store this manner of evidence. He agreed that Graham construction does not have a work force and that Graham was never charged. [ 31 ] Cross-examination by Banff confirmed that the cart was never seized nor was the original cart ever labelled at the scene of the incident.

Anthony Hnatuk [ 32 ] Anthony Hnatuk worked at the Saskatoon Children’s Hospital and had been employed with Banff for approximately eight years, leaving their employ in February, 2019. He was working on the date of the accident with Gerard McLaren and had only worked with the cart a short time prior to the accident. He indicated that Stephen King had trained the crew on its use which might have lasted about thirty minutes on the do’s and don’ts. He never saw a manual nor did he help assemble the cart.

It was hard to move solo and awkward and difficult to move unless you had two people on it and it was especially difficult to move when it was loaded. Two pins held the cart together, one for each side. He did a once over to see if the pins were in place. He was in the fly zone (the area where forms are lifted from one floor to another) and thought he heard a piece of aluminum hit the floor and went around the corner to see Eric on the floor. Gerard was around Eric and the table but he was not sure what they were doing but assumed they were stripping the fly table with two carts.

In his opinion, it was extremely unusual to use two carts to strip one fly table. [ 33 ] In cross-examination by Pilosio , he stated he worked for Banff on Graham construction sites and did not really understand the relationship between the two entities. He never saw or read an Operator’s Manual in regard to the cart. He never saw a cart fall over and they would often sweep the floor vigorously prior to moving a cart as even a small pebble would bring it to a halt. It was protocol to have two people to move the cart. In his opinion lack of communication was a problem that day.

He had told Stephen that he had no training on the cart and was unaware of the procedure for moving it into a narrow place. [ 34 ] In cross-examination by Banff , he stated he felt that Stephen’s instructions and training were adequate and that Stephen was available to answer any of his questions. He did not actually see the accident occur, only the aftermath. Ryan Smotra [ 35 ] Ryan Smotra is the Regional Safety Manager for Graham and supports safety management systems across Saskatchewan. He examined the carts after the accident and took them out of service immediately.

He agreed that the extensions were not part of the original cart and had been added but had no idea when they were made. The cart was designed to fold so it could enter a smaller space.

[ 36 ] In cross-examination, he agreed that Graham hired Banff and they are completely separate companies but as Graham was the prime contractor, they were responsible for safety on the project. He agreed that Pilosio rented the equipment to Graham and not to Banff . [ 37 ] In cross-examination by Banff , he agreed that the Prime Contractor legislation imposes responsibility on Graham to manage safety on the job site and in his opinion, Graham had all the safety components in place at the Saskatoon Children’s Hospital.

He was referred to D-21 of the Project Specific Safety Plan and indicated that Banff would have had to ensure that they were implementing the safety expectations of Graham . He agreed there was nothing in the safety protocols about the cart but Graham has high expectations of safety and standards must be followed but at a certain point you can overwhelm workers with too much documentation and at some point you have to rely on the knowledge and training of your journeymen. [ 38 ] This concluded the Crown’s case.

Case for the Defence [ 39 ] Pilosio called two witnesses. [ 40 ] Johan Struan is the CEO of Pilosio and testified via the Internet from his office in northern Italy. He has extensive experience both with Pilosio and his previous employer who was a competitor of Pilosio . Pilosio Canada is now a very small operation with the collapse of the Alberta market and they are centered in Ontario. [ 41 ] He is familiar with the ST150 cart and table systems and they have had no similar incidents anywhere with their equipment. He has personally assembled a cart and is familiar with its operation.

The cart weighs 560 kilos and requires a minimum of two people to safely operate it especially so when moving it in the relaxed position. Their carts do not have a welded travel stop but use two safety pins in order to keep it stable and they offer two extensions to the top of the cart. In his opinion, two people should always be on it when in use and on-site training is critical to its safe usage. In his opinion it is completely unsafe to operate the cart with only one person because of the difficulty in moving its weight.

On-site training is critical and was provided to Graham who is the party that Pilosio contracted with. The transfer of the cart to Banff in Saskatoon was done without their knowledge and consent and thus no training was provided to the Saskatoon team at the Children’s Hospital. He was shown Exhibit D-4 which is the Rental Agreement drawn up between Pilosio and Graham and paragraph 10 provides a specific prohibition against sub- leasing as it is a safety issue, a commercial issue and a potential equipment loss issue. Nor do they allow any modifications to their supplied equipment.

If a modification was requested, they would consider it and it would it go to their engineering department for an investigation. In his opinion, the cart collapsed because both pins were removed simultaneously without two people present to hold the cart and prevent it from collapsing.

He also took issue with the modifications to the height of the cart with non- Pilosio parts and the use of a threaded rod for the safety pins instead of Pilosio high grade steel pins. [ 42 ] In a nutshell, if the cart is operated by a minimum of two people who have been trained in accordance with their protocols, the cart is completely safe. [ 43 ] In cross-examination by counsel for Banff , he agreed that there were no safety decals or warnings on the cart but insisted that the training they provide is part of the rental agreement and is usually given to the safety officer at the job site, who then presumably imparts his knowledge to the workers operating the cart.

He pointed out that every job site is unique and training at one site does not equate to sufficient training at the next site. The cart will collapse if you ignore the instructions, add extensions not authorized by the manufacturer, use the cart with the extensions in the air and not lowered, take out both pins and operate with only one person. You should never take out both pins simultaneously.

Proper protocol would be to take out one pin, incline the cart, then remove the extensions, put the pin back in place and then move the cart. [ 44 ] In cross-examination by the Crown he again stressed the importance of on-site training to the party that has actually contracted the use of the equipment. He believes the online material and other written material is sufficient supplemented with oral training that is specific to the site being used. Robert Sterling

[ 45 ] Robert Sterling is a forensic engineer who was qualified to give expert evidence in the area of failure analysis and has been involved in over 3500 product failure investigations - the how and why of how things fail, design and how people interact with their products. He stated that he does not just look at the cart although that is a critical part of his analysis but he also looks at the surrounding environment, what was being done at the time, the floors the area. [ 46 ] He testified that Mr.

McLaren must have removed both the pins in order to rotate the cart, the cart collapsed because it was not being supported by two persons and the resulting collapse killed Eric Ndayishimiye. These pins are designed as travel stops and if both pins are removed simultaneously, the cart can collapse. The cart moves on four steel wheels which makes it difficult to move and, in his opinion, having the floor swept of potential debris is critical to successful operation of the cart. In his opinion when the pins were used as a travel stop, the cart was safe to use.

In his opinion the field-made rods did not contribute to the accident but he felt the unauthorized mast extension was a factor. He opined that if two people had been using the cart the event would not have occurred; if one pin had been in place, no problem, and if the floor had been perfectly swept, no problem. Without the travel stops in place, the cart becomes inherently unstable. He concluded that if the employees had followed Pilosio’s instructions this event would not have occurred. [ 47 ] The cart, when used properly is not inherently dangerous.

In cross-examination by Banff the impression was left with the Court that it was Mr. McLaren’s fault that the cart collapsed. In cross-examination by the Crown, he agreed there was no mention of travel stop in the Pilosio written materials and agreed it was important that a worker be trained in the use of the pin as a travel stop. He agreed that the cart should have carried a warning advising of the hazards involved in pin removal. [ 48 ] Banff called one witness. Dr. Rogowsky [ 49 ] Dr.

Rogowsky has been a structural engineer for 35 years and has worked on more than ten billion dollars worth of concrete structures and has assessed the structural safety of equipment over 100 times. He reviewed the trial transcripts and the evidence of Pilosio’s expert and Mr. Struan. [ 50 ] His main conclusion after extensive examination-in-chief and cross-examination was that the cart tripped over because it did not have a travel stop or a permanent travel stop but instead depended on the removable pins as travel stops.

In his opinion, if a welded travel stop had been installed, it would have mitigated the risk of the cart collapsing. This was an integral design flaw in his opinion. He opined that neither the field fabricated pins nor the extended masts contributed to the collapse of the cart. He felt that the Pilosio instructions materials were inadequate and there should be more instruction on maintaining the cart in the collapsed configuration. [ 51 ] In cross-examination by Pilosio he concluded that the action that Mr.

McLaren took by removing the two pins allowed the cart to go into an unsafe position and that had he not removed both pins the event would not have occurred. In his opinion it was missing permanent travel stops which would have prevented this collapse. He also agreed that it was a combination of the two pins being removed plus a shove or push by Mr. McLaren with the extended top that caused the collapse. He agreed that cart would have been safe with the two pins in place.

The Issues Distilled 1) Was Pilosio a supplier? 2) If so, did they fail insofar as was reasonably possible, to supply a plant that was safe when used in accordance with the instructions provided by the supplier? 3) If so, did that failure result in the death of Eric Ndayishimiye ? 4) Was Banff an employer? 5) If so, did they fail to make arrangements for the use, handling, and transport of trolleys in a manner that protects the health and safety of workers? 6) If so, did that failure result in the death of Eric Ndayishimiye? 7) Did Banff fail in the duty to provide information, instruction, training, and supervision, that is necessary to protect the health and safety of their workers on-site? 8) If so, did their failure result in the death of Eric Ndayishimiye?

Position of The Parties

[ 52 ] The Crown suggests that both defendants are ultimately responsible for this death. Pilosio who supplied the table cart for use in the pouring of concrete and or Banff who supplied the labour force at the hospital and who were using the cart for the purpose for which it was intended on July 21, 2016 with insufficient training on the carts’ uses and inherent dangers. [ 53 ] Pilosio suggests it was improper use of their equipment which had been modified without their consent or knowledge and further suggests it was a significant lack of training on their product which was available to either Graham or Banff .

Pilosio suggests that had the Banff crew been trained properly on the cart and had they been adhering to the proper safety protocol of the cart, i.e. two people holding it when it moves, the accident would not have occurred. In addition, Pilosio takes the position that they rented/supplied this equipment to Graham and not to Banff and their agreement was specific about notice being required if the equipment left Graham . [ 54 ] Banff suggests it was the fault of the Pilosio cart which had an inherent design flaw which caused it to fail and collapse on the deceased.

The Facts [ 55 ] On the evidence I have heard, I make the following factual conclusions. There was little in the way of disagreement between the parties on the evidence of the witnesses and I am satisfied that all witnesses, without exception, were telling the truth as best they could recall. The evidence of Gerard McLaren was received as a result of a KGB application by the Crown but it offered little in the way of advancing the case for the Crown and has no significance to my decision. [ 56 ] The facts are relatively straightforward.

On July 21, 2016 work was being conducted on the new building now known as the Jim Pattison Children’s Hospital in Saskatoon, Saskatchewan. The primary contractor was Graham Construction . The defendant, Banff Constructors Ltd. was the subcontracted labour for Graham Construction and were supplying labour for the build of the hospital, particularly on this date, for producing and pouring concrete. The defendant Pilosio had supplied materials for the purpose of scaffolding and holding forms in the form of the Pilosio cart which is designed and produced in Italy.

The cart was supplied to Graham by Pilosio and was subsequently shipped to Saskatoon to be used by Banff at the Saskatoon Children’s Hospital. While on that site, the cart was modified by Banff without the knowledge of Pilosio so that the arms on the upright portion of the cart could reach higher. [ 57 ] In a nutshell it supports a table lifted to the roof of a new concrete pour which then enables four upright posts or props to hold up the table of wood while the concrete is drying.

It is then used again when the table is stripped off the pour to enable the props to be taken away, then wheeled away for use in another pour. It had been used only once prior in Canada before being utilized at the Jim Pattison Children’s Hospital and had been done so successfully by Graham at the site of a new hospital in Grande Prairie, Alberta. [ 58 ] On the date in question, Eric Ndayishimiye was in the area, removing nails from boards as part of his job on the clean up crew. It was important to keep the work floor area as clean as possible as the cart moves on four relatively small steel wheels.

Gerard McLaren was attempting to move a Pilosio cart by himself into a smaller or lower area of the building floor and in order to do so, removed two pins holding the cart together. This is possible to do safely when being done by two people holding onto the cart as it tends to sway out of control with the pins removed. On the date in question Mr. McLaren moved it by himself, removed the two pins, the cart then collapsed onto itself, narrowly missing him, but landing directly on Eric Ndayishimiye who died of the injuries sustained.

Decision [ 59 ] This trial has occupied an inordinate amount of time since we first began and has been characterized by numerous unnecessary and, in my opinion, time consuming applications which have little bearing on the outcome of the case. Some of these delays were occasioned by counsels’ needs and some by the pandemic currently occupying our attention worldwide. [ 60 ] Pilosio supplied the cart to Graham at the Grande Prairie Hospital. When that hospital was completed and the carts were no longer required there, the carts were shipped to be used at the new Children’s Hospital in Saskatoon.

This was done without the express permission or knowledge of Pilosio who also supplies technical knowledge, manuals and on-site training as part of the leased package. In Pilosio’s opinion, this training is critical and that training had been provided to the Graham employees on-site at the hospital in Grande Prairie. I find it was reasonable for Pilosio to conclude that since they had always exclusively been dealing with Graham , that Graham would have been responsible for passing on that training to any other site that the carts were to be used.

In addition, they had contemplated this scenario in their lease agreement which specifically specifies no transference of the product without the permission of

Pilosio. [ 61 ] Once at the scene in Saskatoon, it appears that the carts were not sufficient for the purpose in that they could not be elevated enough to satisfy the requirements of holding the wood form in place while the concrete pour dried. There was no training provided by Pilosio as they were unaware of the transfer of equipment. The carts arrived in three pieces, so the local Banff staff put them together from scratch and basically learned on the job.

Banff and/or Graham , decided to alter the carts to add a piece to enable them to lift higher. [ 62 ] I find that this was a fatal error as it was done without the knowledge, advice or consent of the designers and manufacturers of the cart. Had that advice and consent been sought, either the alteration would have been vetoed or a difference to the design by the originators would have been designed, tested and possibly approved. At the absolute least, Pilosio should have been advised of this design alteration.

This was not done and with the lack of training on-site, this resulted in the fatal crash which killed Eric Ndayishimiye. The removal of the two pins simultaneously without two people holding the cart resulted in the cart collapsing.

The wheels of the cart and the weight of the additional arms could not be sustained by the existing design of the cart and it collapsed while being moved by an employee of Banff . [ 63 ] The question then becomes who was the supplier and to whom? [ 64 ] The Act further defines “supplier” as “a person who supplies, sells, offers or exposes for sale, leases distributes or installs a biological substance for chemical substance or any plant to be used as a place of employment.” [ 65 ] Does the Act contemplate an endless chain of persons and or companies receiving the equipment and Pilosio having to chase down that chain to see who and how their equipment is being used? [ 66 ] In the instant case Pilosio “supplied” Graham and it was Graham who then “supplied” the equipment to Banff without the apparent permission or even knowledge of Pilosio .

I am therefore not convinced that the Crown has proven that element of the offence beyond a reasonable doubt. If I am incorrect in that assessment, I would then go on to consider the possible statutory defence contained in the Act . [ 67 ] Pilosio is charged under subsection 3-15(

a) of The Saskatchewan Employment Act , SS 2013, c S-15.1 [ Act ]: 1) Being a supplier , fail to ensure, insofar as reasonably practicable, that any plant supplied by the supplier to any owner, contractor, employer or worker for use in or at a place of employment is safe when used in accordance with the instructions provided by the supplier and complies with the requirements of the Part and the Regulations made pursuant to this Part , as required by subsection 3-15(

a) of The Saskatchewan Employment Act. [ 68 ] The wording of the Act references the phrase “insofar as is reasonably practicable”. [ 69 ] “Practicable” is defined in the Act as “means possible given current knowledge, technology and invention” and “reasonably practicable,” “means practicable unless the person on whom a duty is placed can show that there is a gross disproportion between the benefit of the duty and the cost, in time, trouble and money, of the measures to secure the duty.” [ 70 ] The Act does not say “reasonably possible.” It is my opinion, based on the evidence, that Pilosio did what was “reasonably practicable” when it supplied the table cart to Graham in Alberta and offered training on-site and online.

Pilosio cannot reasonably be expected to track the transfer of their leased equipment all over North America when such transfer is specifically prohibited in their lease agreement with Graham . Graham is a major builder in Canada and was one of Pilosio’s biggest customers with whom they had dealt with extensively without incident.

They had dealt with Graham on previous occasions without incident and relied on their expertise and professionalism in dealing with their equipment. [ 71 ] Graham then “supplied “that cart to Banff without the consent of Pilosio and then further manufactured additional arms to the cart to make it suit the specific purposes of the Saskatoon build.

At the very least, Graham and or Banff should have contacted Pilosio and requested their opinion of what the insertion of the new arms would have on the overall use of the cart. [ 72 ] Pilosio supplied the cart to Graham in Grande Prairie, Alberta where it was used without incident because based on the evidence I have heard, they also supplied appropriate “hands on” training. I am not persuaded by the expert evidence of Banff that it was an inherent design flaw.

The cart had worked properly and without incident at the hospital in Grande Prairie and, on the evidence I heard, there has never been another incident like this occurring anywhere else in the world. The chain of training broke down with the transfer of the equipment by Graham to their site in Saskatoon, the appropriate training not being provided to different Banff employees and without asking for more help from Pilosio .

[ 73 ] The charge against Pilosio is therefore dismissed. [ 74 ] Banff is charged with : 1) Being an employer at a place of employment, fail to make arrangements for the use, handling and transport of trolleys in a manner that protects the health and safety of workers as required by subsection 12(

b) of The Occupational Health and Safety Regulations , 1996 resulting in the death of a worker, Eric Ndayishimiye, contrary to subsections 3-78(

g) and 3-79 of The Saskatchewan Employment Act; 2) Being an employer at a place of employment, fail in the provision of any information, instruction, training and supervision that is necessary to protect the health and safety of workers at work as required by subsection 12(

c) of The Occupational Health and Safety Regulations , 1996, resulting in the death of a worker, Eric Ndayishimiye, contrary to subsections 3-78(

g) and 3-79 of The Saskatchewan Employment Act . [ 75 ] Banff claims that the Crown has not proven the essential elements of the offence beyond a reasonable doubt. However, if I find the Crown has proven its case to the necessary standard, then Banff must prove its due diligence on a balance of probabilities, applying an objective standard that measures Banff’s conduct against that of a reasonable person under similar circumstances. In that event, Banff submits that it has three overlapping defenses which, if proven, should lead to dismissal of the charges.

These three defenses can be summarized as follows: • Banff exercised all reasonable care in the circumstances; • Banff was operating under a reasonable mistake of fact which renders its actions or omissions innocent; • the collapse of the table cart and the actions of Mr.

McLaren were not reasonably foreseeable. [ 76 ] There are several factors on which Banff relies to assert that its actions as employer did not fall short of what is required by statute, and that responsibility for the death of Eric Ndayishimiye lays elsewhere: • the table cart was not a complicated piece of equipment; • the Banff crew were experienced in construction; Stephen King was a “red seal” carpenter and Gerard McLaren had many years in the trade; both King and David George monitored the safety of the site; • the Banff crew had the Pilosio Technical Newsletter with images showing the assembly and operation of the table carts; • the Banff crew had developed its own safe work rules for the table carts after assembling them and getting a feel for how they were used: they found the carts are better operated by two people, especially when both pins were pulled, and the floor should be swept before moving the cart. [ 77 ] Banff submits that responsibility should lay with Pilosio for providing misleading visual instructions and for failing to provide warnings and written instructions.

Additionally, Banff argues that Pilosio representatives lacked the requisite knowledge of the cart to instruct on all the necessary safety points, even if they had requested training; or if they did possess the knowledge, they failed to share it in the Technical Newsletter. [ 78 ] Banff redirects responsibility further by raising that it contracted with Graham for the provision of safety management services at the hospital construction site; Graham in turn contracted with the Saskatchewan Health Authority to ensure a health and safety management system was in place to supervise and monitor workplace safety while on the Children’s Hospital grounds.

Banff also highlights that Graham , not Banff , rented the table cart equipment from Pilosio ; suggesting there is a step in the chain of responsibility being bypassed in the Crown’s charge against Banff . [ 79 ] Banff submits that even though the contract for use of the equipment was solely between Graham and Pilosio , they each owed a legislative duty as contractor/owner and supplier to provide the required information for the table cart to Banff ; that this “is a statutory duty that cannot be contracted out of.” [ 80 ] Finally, Banff submits that responsibility lays with Gerard McLaren as the individual managing the cart at the time of the incident.

Gerard McLaren saw the Technical Newsletter, ascertained the operation of the carts along with other workers, knew to keep the surrounding floor clean, yet still pulled both pins at once while maneuvering the table cart by himself. [ 81 ] With this background and the identified roles of Graham , Pilosio and Gerard McLaren, Banff submits the Crown has failed to prove its case beyond a reasonable doubt. It submits that in all occasions where Banff is alleged to have failed in meeting its responsibility as an employer, that it could not have reasonably done anything more than what it did.

It could not have known more training was available from Pilosio , but that it made use of the information available to it which fell short in its instruction or was misleading. Banff , it claims, is not clairvoyant and cannot know to look beyond what is provided to it. [ 82 ] Yet, I find that Banff should have known to look for more information about the table carts when what they received was

glaringly scarce. The absence of information was blatant, because the senior workers had to figure out the table cart’s operation for themselves. The responsibility lies with Banff to supplement information and instruction for their workers when those things fall short. [ 83 ] Even if the workers created their own safe handling instructions after improvising with assembly, their informal agreement on how best to use the table cart does not carry the same weight or meet the same standards for safety as official rules and training.

Subsequently, this does not carry the same authority when translating into the actions of workers. Hearing about how to use a piece of equipment or even seeing it modeled by other workers is no replacement for official training, especially when the example being modeled is informed only by recent experimental trial and error. [ 84 ] There is an insurmountable gap between the missing official information and instruction, and that gathered by the workers themselves through their own discovery. The only way this gap can be bridged is through the due diligence of Banff.

Even if the official instruction from Pilosio would have fallen short in Banff’s opinion, Banff should have pursued the information, instruction and training that was required. By failing to do this, Banff has not upheld its responsibility as an employer. The Crown has proven this beyond a reasonable doubt. [ 85 ] Returning to due diligence defences advanced by Banff . Banff states that it exercised all reasonable care under the circumstances.

Here, Banff points to Graham’s safety management system which covered the worksite, Banff’s experienced supervisors, crew and specific group of workers designated to use the equipment; the Technical Newsletter, the best practices developed through the worker’s hands-on discovery, and the fact that the cart was not complicated to use. Based on these factors Banff argues that it did all it could in areas where it exerted control.

It could not have controlled inherent design flaws of the table cart, nor the type of instructional information it received for the table cart. [ 86 ] Here again, it should have been evident to Banff that operational instructions and information about the cart were lacking when their workers had to decide for themselves how to put it together and use it, even fashioning their own pins for it when these were discovered to be missing. [ 87 ] Banff’s argument that it is reasonable to defer to Pilosio to furnish necessary operating information for the equipment is agreeable in a context where Pilosio contracts directly with Banff and is aware of their usage of the table cart.

Pilosio cannot be expected to supply information to a party when it is unaware of the requirement. [ 88 ] Banff also argues that it cannot be faulted for following the limited and misleading information provided to it about the operation of the table carts; Banff should have been able to rely on these instructions unless some error was glaringly apparent, which they state was not the case.

Therefore, on a balance of probabilities Banff submits that it can rely on a defense of mistake of fact. [ 89 ] However, the omission of instructional information should have been apparent as a Technical Newsletter falls short of a comprehensive user guide. Ultimately, worker safety is determined by proper training and access to reliable information; it was Banff’s responsibility to fill the knowledge gap created when the table carts arrived in Saskatoon from Grande Prairie with almost no accompanying instruction.

Consultation with Graham , the Banff crew in Grande Prairie or even Pilosio itself would have brought some enlightenment on the cart’s operation, led to further instruction and clarification, and at the very least it would have illustrated Banff’s due diligence in seeking the necessary information. [ 90 ] The final defense offered by Banff is that the potential danger of the table cart was not reasonably foreseeable on two faces: • the potential danger of the cart falling was not reasonably foreseeable, and • it was not reasonably foreseeable that Gerard McLaren would operate the cart alone and with both pins removed. [ 91 ] The Banff crew knew that this heavy, awkward table cart with modified extensions was difficult to maneuver with one person, and that even a little stone or debris on the floor could impede its movement.

The workers had also deduced that only one pin should be removed at a time to keep the cart steady. It is reasonable to foresee potential danger when heavy, hand manipulated equipment is used by a single person, extended in height through modifications for which it was not designed to withstand, from which both stabilizing pins are removed simultaneously. The risk and potential danger of the cart’s fall would have been reasonably foreseeable. [ 92 ] To address the foreseeability of Mr.

McLaren’s actions, Banff raises cases where workers ignored safe work procedures without explanation and the courts held that their departure from normal practice and expectation was not reasonably foreseeable ( R v Lonkar Well Testing Limited [2] and R v Sunshine Villages [3] ). [ 93 ] I note a differentiation between these cases and the one at hand: Mr. McLaren was not ignoring direct instruction, training and established procedure.

Gerard McLaren and the Banff crew had figured out their own best practices for using the table cart in the absence of official worksite or manufacturer-authorized parameters around its usage. The workers discovered the cart’s usage themselves and they therefore lacked hard and fast rules around its operation. Mr. McLaren’s use of the cart on the day of the incident is an extension of the trial and error approach taken with the cart since the day of its improvised assembly on the worksite.

Banff , “the employer”, gave no instructions or assistance to their employees in this regard. [ 94 ] I find that it was reasonably foreseeable for Mr. McLaren to test the operation of the cart in this way, given the lack of clear and reinforced direction to the contrary. It is false to assume that one’s significant experience in the trade precludes their need for

training and instruction on equipment with which they are not familiar. [ 95 ] In my opinion, the provided appellate cases speak to trial judgements which mistakenly found employers accountable for requirements imposed with hindsight. I do not feel that is the case here. In this case, we are not speaking of precautions and regulations enforced by employers that in hindsight do not go as far as they should.

Instead I can point to a visible absence of precaution by Banff for their employee’s safety, and on that point these cases are also distinguishable. [ 96 ] I find that Banff’s arguments fail on the due diligence defences. Conclusion [ 97 ] Based on the evidence presented, the carts were shipped to the Saskatoon construction site and essentially arrived in pieces which had to be set up. No representative of Pilosio was notified of the transfer of the carts nor was anyone from Pilosio available to give instruction on proper set up and use of the cart.

It appears that the local Banff staff simply figured it out on their own and began using the cart while learning on the job. There was essentially no training or in-depth briefing given by anyone to the workers on the floor. Unfortunately, Gerard McLaren refused to testify either by video link or in person.

I find that if the same training that had been offered to Graham in Alberta had been offered to Banff in Saskatoon, the possibility of this accident occurring would have been significantly eliminated. [ 98 ] The cart was modified by either Graham or Banff upon arrival in Saskatoon and they must bear the responsibility for doing that modification without the knowledge and consent of the designers of the cart. [ 99 ] Perhaps more significantly, they provided no real on-site training with a representative of Pilosio at the Children’s Hospital in Saskatoon.

In my opinion, because the table cart was of relatively simple construction and appearance, the employees and supervisors of Banff in Saskatoon felt they had no need to do more than set the cart up and start using it. They were perhaps lulled into a false sense of security by its apparent simple construction or felt that their local staff could just figure it out on their own. It does not have the appearance of a sophisticated or complicated piece of machinery.

If they had contacted either the Banff employees at the site in Grande Prairie or, if they had shipped the cart from Grande Prairie, together with the crew who was familiar with the cart and its operation, this accident would not likely have occurred. It is therefore my conclusion that Banff did completely fail in the provision of instruction, information, training and supervision of the table cart at the Children’s Hospital in Saskatoon. [ 100 ] A great deal of time and effort has been spent by all parties on the discussion of strict versus absolute liability.

Clearly on the evidence before me and the case law supplied this is a case of strict liability. The onus is on the Crown to establish the actus reus beyond a reasonable doubt and once that is established, the onus passes to the defence on a balance of probabilities to establish that they acted reasonably in all the circumstances. [ 101 ] I am satisfied on the evidence I have heard that the Crown has established the actus reus in regard to Pilosio in all elements with the exception of the definition of supplier.

As noted above, while Pilosio is a “supplier” by the definition in the Act , it is my opinion that they were not the supplier vis- à-vis Banff . As noted supra , if I am incorrect in my conclusion regarding “supplier” I would find that the defendant Pilosio has satisfied me on a balance of probabilities that they acted reasonably throughout in order to avoid this tragic outcome. [ 102 ] In regard to the defendant Banff , I find that the Crown has established all the essential elements of the offence as charged and therefore have established the actus reus .

I further find that the defences promulgated by the defendant Banff have not been established as being reasonably practicable. They could easily have transferred at least one member of the team, who had worked with the cart on the build in Grande Prairie, to the Children’s Hospital in Saskatoon and that person could have set up and trained the Saskatoon employees on its safe use.

It is certainly easy to cast blame on the design of the cart, and further on to the Banff employee who is now safely ensconced in Ireland, but it is my opinion based on the evidence they did not provide any adequate training on the cart for the team in Saskatoon and it was their obligation to do so nor did they provide for its safe use or handling. [ 103 ] This was serious negligence as Banff had overhead equipment which was being used to fly forms from one floor to another. It was dangerous to anyone below it if in fact collapsed as happened here.

They were operating this equipment without appropriate written instructions and made no attempt to contact the manufacturer to see what safety requirements were recommended.

They further modified this equipment without notice or permission from the manufacturer. [ 104 ] Eric Ndayishimiye was not in the wrong place at the wrong time – he was placed there by his employer who did not take precautions to ensure his safety; if anything he was working for the wrong company – a company who was willing to spend money on an expert to shift the blame afterward but was not willing to spend the time and money to get the correct parts and safety manuals for the equipment in the first place. [ 105 ] I find that the Crown has proven its case beyond any reasonable doubt with regard to the accused Banff of both charges and it has not proven its case with regard to the accused Pilosio . __________________________ B.M.

Klause, J

[1] See Exhibit D-5 or D-9