R. v. The Murray Group Limited, 2011 ONCJ 896

Information No. 09-3655 Citation: R. v. The Murray Group Limited , 2011 ONCJ 896 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES COURT HER MAJESTY THE QUEEN v. THE MURRAY GROUP LIMITED ********** HEARD BEFORE HIS WORSHIP JUSTICE OF THE PEACE A.J. CHILD on June 6 th , 2011 at GUELPH, Ontario R E A S O N S F O R J U D G M E N T ********** CHARGES: Section 60(1) Section 84(1) Section 185(7) Section 46(2) of O. Reg. 854/90, contrary to s.25(1)(

c) of the O.H.S.A. – all counts **********

APPEARANCES: A. Gordon-Fagan Crown Prosecutor for the Ministry of Labour N. Keith Counsel for The Murray Group Limited MONDAY, JUNE 6 TH , 2011 THE COURT: All right. We’ll proceed with judgment in regard to The Murray Group. MR. KEITH: Good morning, Your Worship. THE COURT: Good morning, Mr. Keith. MR. KEITH: It’s Norman Keith, K-E-I-T-H, initial ‘N’, counsel and agent for The Murray Group Limited. THE COURT: Yes. MS. GORDON-FAGAN: Good morning, Your Worship. It is Gordon-Fagan, initial ‘A’. Gordon, G-O-R-D-O-N hyphen Fagan, F-A- G-A-N, initial ‘A’. Crown counsel on behalf of the Ministry of Labour.

And I’m beginning to sound like a stuck record but, I do want to apologize to the court and to my friend and to everyone here for being late. But, I did exit at the Hanlon Expressway at 9:18 this morning and I got caught in the construction. So I apologize for being late. THE COURT: All right. Ms. Gordon-Fagan, I believe you must have sent me a case. MS. GORDON-FAGAN: Yes, Your Worship. THE COURT: I was not aware of that case until I received an e-mail through the court from Mr. Keith... MS. GORDON-FAGAN: Yes. THE COURT: ...in regard to reference to a case which, of course, I had never heard of. MS.

GORDON-FAGAN: Yes, Your Worship. THE COURT: And in regard to submissions by Mr. Keith, which didn’t really assist me all that much in terms of referencing what you had sent but, I understood what Mr. Keith was submitting. Was it just the case that you sent or were there submissions attached to that case? MS. GORDON-FAGAN: No, Your Worship.

You may recall that you had asked to find out if there were any cases where the Seeley & Arnill decision had been applied outside of the fall arrest situation and I had trouble actually finding cases because they refer to Seeley & Arnill but, upon closer inspection, they just referred to it but they didn’t actually adopt the reasoning or expressly adopt the reasoning. But, this one was the closest that I could find. And so... THE COURT: All right. So I take it then that paragraph 47, which in the copy of the case that I have is highlighted, I take it, is that something that you highlighted? MS.

GORDON-FAGAN: Yes, Your Worship, it’s highlighted. THE COURT: All right. So that’s the paragraph then, I take it, that I assumed it was, was the—to support the fact that in this case, in any event, the fatal injuries of the worker, Weber, were prima facie or prima facie imported the actus reus . MS. GORDON-FAGAN: That’s right. THE COURT: That was the position that you wished me to... MS. GORDON-FAGAN: That’s right, Your Worship. THE COURT: All right. MS. GORDON-FAGAN: And so it’s not the same facts as the one that was before the court but just a case where they applied the same kind of a reasoning.

And that’s the closest I could find. Now, my assistant was told to send it to a

case where they applied the same kind of a reasoning. And that’s the closest I could find. Now, my assistant was told to send it to a different location and I guess that’s why you didn’t get it, Your Worship. So not until my friend responded to it did you become aware of it. But... THE COURT: All right. In any event—all right. Well, I’ll refer to it in my judgment which I updated in that issue. That was the only issue then in that part—in that case... MS. GORDON-FAGAN: That’s right. That’s right, Your Worship. THE COURT: ...that you wished me to consider. MS. GORDON-FAGAN: That’s right.

THE COURT: I assumed that and... MS. GORDON-FAGAN: Yes. And not the rest of... THE COURT: All right. Thank you. MS. GORDON-FAGAN: Thank you. R E A S O N S F O R J U D G M E N T CHILD, J.P. (Orally): All right.

In regard to this matter, The Murray Group Limited is charged that on or about the 18 th day of November, 2008 at the Township of Centre Wellington in the Central West Region of the Province of Ontario, did commit the offence of failing, as an employer, to ensure that the measures and procedures prescribed by section 60(1) of the Revised Regulations of Ontario, Regulation 854, as amended, were carried out in a workplace located at 7206 Middlebrook Road, Township of Centre Wellington, Ontario, contrary to section 25(1) (

c) of the Occupational Health and Safety Act , R.S.O. 1990, c.O.1, as amended. Particulars: The defendant failed to ensure that before a worker entered an overhead feed bin that the said measures and procedures were carried out. A worker, Steven Hutchinson, was injured.

And further that The Murray Group Limited, Box 40, Moorefield, Ontario N0G 2K0, on or about the 18 th day of November, 2008 at the Township of Centre Wellington in the Central West Region in the Province of Ontario, did commit the offence of failing, as an employer, to ensure that the measures and procedures prescribed by section 84(1) of Revised Regulations of Ontario, Regulation 854, as amended, were carried out in a workplace located at 7206 Middlebrook Road, Township of Centre Wellington, Ontario, contrary to section 25(1) (

c) of the Occupational Health and Safety Act , R.S.O. 1990, c.O.1, as amended. And further that The Murray Group Limited, Box 40, Moorefield, Ontario N0G 2K0, on or about the 18 th day of November, 2008 at the Township of Centre Wellington in the Central West Region of the Province of Ontario, did commit the offence of failing, as an employer, to ensure that the measures and procedures prescribed by section 185(7) of Revised Regulations of Ontario, Regulation 854, as amended, were carried out in a workplace located at 7206 Middlebrook Road, Township of Centre Wellington, Ontario, contrary to section 25(1) (

c) of the Occupational Health and Safety Act , R.S.O. 1990, c.O.1, as amended. Particulars: The defendant failed to ensure that the said measures and procedures were carried out in respect of work done on an overhead feed bin. A worker, Steven Hutchinson, was injured.

And further that The Murray Group Limited, Box 40, Moorefield, Ontario N0G 2K0, on or about the 18 th day of November, 2008 at the Township of Centre Wellington in the Central West Region of the Province of Ontario, did commit the offence of failing, as an employer, to ensure that the measures and procedures prescribed by section 46(2) of Revised Regulations of Ontario, Regulation 854, as amended, were carried out in a workplace located at 7206 Middlebrook Road, Township of Centre Wellington, Ontario, contrary to section 25(1) (

c) of the Occupational Health and Safety Act , R.S.O. 1990, c.O.1, as amended. Particulars: Where a worker was required to maintain or service equipment, to wit: an overhead feed bin, the defendant failed to ensure that a safe means of access to the overhead feed bin was provided. The defendant was arraigned on November 24 th , 2010. A not guilty plea was entered to each of the four counts. The trial proceeded on that date and again on November 25 th and November 26 th , 2010. The trial was then adjourned to January 20 th , 2011, then to January 21 st for submissions and to today’s date for judgment.

APPLICABLE REGULATIONS AND SECTIONS Section 1(1) of the Occupational Health and Safety Act defines “mine” as meaning “any work or undertaking for the purpose of openingup, proving, removing or extracting any metallic or non-metallic mineral or mineral-bearing substance, rock...clay, sand or gravel.” Section 60(1) of Revised Regulations of Ontario, Regulation 854 states: “Before a worker enters any silo, bin, hopper or other containeror structure containing bulk material, all further supply of material thereto shall be stopped and any removal of material therefrom shallbe prevented.” Section 84(1) of Revised Regulations of Ontario, Regulation 854 states: “If a worker may be endangered by the withdrawal, collapse,shifting or movement of bulk material such as rock, ore or other material in a stope, pass or chute or in a storage area, the employer shallensure that written procedures for the precautions to be taken before, during and after removal of the material are established andfollowed.” Section 185(7)(

a) of Revised Regulations of Ontario, Regulation 854 state: “If any work is being done on a machine, (

a) the movingparts shall be stopped.” “Machine” is defined in Section 185(1) as including “a prime mover, transmission equipment and thing.” Section 46(2) of Revised Regulations of Ontario, Regulation 854 states: “Where workers are required to work, operate, maintain orservice equipment, a safe means of access shall be provided as prescribed in subsection (1).” Subsection (1) states: “A safe means ofaccess to a workplace shall be provided by a walkway, stairway or ladderway.” Section 25(1)(

c) of the Occupational Health and Safety Act states: “An employer shall ensure that, the measures and proceduresprescribed are carried out in the workplace.” CASES CITED Regina v. Spanway Buildings Limited, (unreported) April 3rd, 1986; Niagara v. DiFruscia, [2010] O.J. No. 4041; Regina v. Novelo, [2009] O.J. No. 3215; Regina v. Cancoil Thermal Corp.,

(1988) C.O.H.S.C. 169; Regina v. City of Hamilton, (2002) 58 O.R. (3d) p.37; Regina v. Timminco Ltd., (2001) (ON CA), 153 C.C.C. (3d) 521; Regina v. Campbell, [2004] O.J. No. 129; Regina v. Brampton Brick, [2004] O.J. No. 3025; Regina v. Sault Ste. Marie, (1979) (SCC), 85 D.L.R. (3d) 161; Regina v. Rio Algom Ltd., (1988) 66 O.R. (2d) p.674; Regina v. National Wrecking Co., [2005] O.J. No. 3578; Regina v. Moran Mining and Tunnelling Ltd., [2006] O.J. No. 2254; Regina v. Seeley & Arnill Aggregates Ltd., [1993] O.J. No. 443; Regina v. Blair, [1993] O.J. No. 1477; Regina v.

Wyssen, (1992) 10 O.R. (3d) p.193; Regina v. Stoler Construction, (unreported) November 28th, 1986; Regina v. Inco, [2001] O.J. No. 4938; Regina v. St. Lawrence Cement Inc., [1993] O.J. No. 1442; Regina v. Dofasco Inc., (2007) 2007 ONCA 769 , 230 C.C.C. (3d) 280;

Regina v. Stelco Inc., [1989] O.J. No. 3122; Regina v. Bradsil 1967 Ltd., [1994] O.J. No. 837; Regina v. Moran Mining and Tunnelling Ltd., [2004] O.J. No. 5592; Regina v. London Excavators & Trucking Ltd., (ON CA), [1998] O.J. No. 6437.

EXHIBITS ENTERED Exhibit 1 – Corporation Profile Report of The Murray Group Limited; Exhibit 2(a) – Photograph of Sign: The Murray Group Limited Asphalt & Gravel Bowman Pit; Exhibit 2(b) – Photograph of front view of the overhead feed bin from ground level marked with two circles showing the two shuttlefeeders and an ‘X’ marking the centre conveyor; Exhibit 2(c) – Photograph of top of the feed bin; Exhibit 2(d) – Photograph of haul truck at top of feed bin and skid steer; Exhibit 2(e) – Photograph of top of feed bin showing grates where material enters the bin; Exhibit 2(f) – Photograph of view from top of feed bin looking down through grate at shuttle plates; Exhibit 2(g) – Photograph of view from top of feed bin looking down through grate onto one of the shuttle plates; Exhibit 2(h) – Photograph of view from ground level looking into bin through chute at the feeder shuttle; Exhibit 2(i) – Photograph of control panel on side of generator with two padlocks on the cover; Exhibit 3 – Documents titled Murray Group Limited Health and Safety Policies and Procedures: Bin Safety and Lockout Tag Equipmentand Energy, dated January 2006; Exhibit 4 – Documents titled Murray Group Limited Health and Safety Policies and Procedures: Bin Safety, Low Risk Confined SpaceEntry, Lockout and Tag Equipment and Energy, Maintenance Policy, ERP-Procedures, dated January 2007; Exhibit 5 – WSIB Employer’s Report of Injury regarding Steven Hutchinson; Exhibit 6 –

Section 52 Notice of Accident/Injury; Exhibit 7 – Copy of faxed letter from Chris Hodgson to James Milne, Inspector, together with attached revised Overhead Feeder BinEntry procedure, dated November 2008; Exhibit 8 – Copy of faxed letter from Chris Hodgson to James Milne, Inspector, regarding

Section 52 Notice of Compliance Form; Exhibit 9 – The Murray Group Health and Safety Policy dated May 1st, 2008; Exhibit 10 – Health and Safety Policy and Procedures Manual; Exhibit 11 – Modular Training Transcript of Glenn Wilkin, Safety Talk Meetings attended by Glenn Wilkin and Certificates of GlennWilkin; Exhibit 12 – Log entries from May 4th, 2006 to May 1st, 2009 of lockouts; Exhibit 13 – Ministry of Training Colleges and Universities Modular Training Standards – Surface Miner of Glenn Wilkin; Exhibit 14 – Ministry of Training Colleges and Universities Modular Training Standards – Surface Miner of Jaime Roswell; Exhibit 15 – The Murray Group Limited Surface Miner Common Core Training Standards, Version One, March 2002; Exhibit 16 – Modular Training Application and Report, Health and Safety Procedures, New Employee Orientation and Safety Training;all regarding Jaime Roswell; Exhibit 17 – Ministry of Training Colleges and Universities Modular Training Standards – Surface Miner Program for StevenHutchinson and related documents; Exhibit 18 – The Murray Group Limited Spring Start-up Meeting 2008 Agenda, Health and Safety Policy dated March 21st, 2007 andWSIB Documents and The Murray Group Limited Health and Safety Policies and Procedures dated January 2007; Exhibit 19 – The Murray Group Limited Spring Start-up Meeting 2007 Agenda, The Murray Group Limited Health and Safety Policy dated March 21st, 2007, Letter from WSIB and various Health and Safety Policies and Procedures of The Murray Group Limited;

Exhibit 20 – The Murray Group Limited Spring Start-up Safety Orientation – March and April 2006, The Murray Group Limited Health and Safety Policy dated March 16 th , 2006 and various Health and Safety Policies and Procedures, Plans and Programs of The Murray Group Limited; Exhibit 21 – Ministry of Training Colleges and Universities Modular Training Transcript of Steven Hutchinson, various Murray Group Limited Records of Employee Health and Safety Training including Chris Hodgson, Steven Hutchinson, Glenn Wilkin and Jaime Roswell; Exhibit 22 – The Murray Group Organizational Chart; Exhibit 23 – Ministry of Training Colleges and Universities Modular Training Transcript of Bradley Keith Mitchell, various training records and certificates of Bradley Mitchell; Exhibit 24 – Various news safety letters of The Murray Group Limited; Exhibit 25 – Ministry of Training Colleges and Universities Modular Training Standards – Surface Miner, relating to Brad Mitchell; Exhibit 26 – Photograph of The Murray Group Limited Health and Safety Information Board; Exhibit 27 – Certificates of Chris Hodgson; Exhibit 28 – Letter of congratulations from WSIB dated October 1 st , 2007 to Chris Hodgson; Exhibit 29 – Letter from WSIB to Chris Hodgson regarding August 1 st , 2007 Safety Group Program and attached Spot Check Report; Exhibit 30 – Letter dated December 5 th , 2008 from Chris Hodgson to Don DelVecchio, OSWCA, and Year End, Maintenance Reports from 2002 to 2008; Exhibit 31 – WSIB Safety Group Action Plans for The Murray Group Limited.

OVERVIEW The charges against the defendant arise from an accident that occurred on November 18 th , 2008 at a gravel pit located at 7206 Middlebrook Road, Centre Wellington, known as the Bowman Pit. At the Bowman Pit there is a structure called an overhead feed bin which, at the top through grates, receives gravel from haul trucks with a belly bottom. The bin has sloping sides to facilitate sand and gravel getting to the bottom.

At the bottom there are two shuttle feeding plates that move back and forth literally shuttling material through a chute onto a conveyor belt which carries the material to a processing plant. The shuttle feeders are powered by an electric motor. There is a control panel for the machinery located nearby on the side of a generator trailer. On November the 18 th , 2008, two workers entered the bin from the top in order to clean the shuttle feeding plates for the purpose of the winter shutdown. They did not use a ladder; instead, used shovels to assist in descending along the sloping sides of the bin.

There was gravel on these sloping sides. A third employee remained outside at the top of the bin in the role of a spotter. On previous occasions, when doing this procedure, a fourth worker would be stationed at the control panel. This was not the case on November 18 th , 2008. At the control panel the shuttle feeders could be both turned off and locked out. The two employees commenced cleaning the shuttle feeders; one employee on one side and one employee on the other side. The shuttle feeding plates were not shut off during this process.

During the cleaning one of the employees was pushed up against the feeding hole that goes to the conveyor by gravel that had become dislodged. The worker called out to shut off the shuttle feeders, which was done by the employee at the top of the bin who ran to the control panel. The worker in the bin was unable to be freed. 9-1-1 was called and, with the assistance of emergency services personnel, the worker was eventually freed. The worker was taken by ambulance to the Fergus hospital. The Bowman Pit is operated by the defendant, The Murray Group, and the employees worked for The Murray Group.

The supervisor for the Bowman Pit was not present when the accident happened. ADMISSIONS

Mr. Keith, on behalf of the defendant, has admitted the following: The Murray Group is a valid and subsisting corporation. The corporation was the employer of the workers involved in the incident including Steven Hutchinson, who had a bruise. As well, the date and location of the allegations are not in issue. POSITIONS OF THE PARTIES THE DEFENDANT Mr.

Keith has submitted that the Ministry of Labour has not proven the actus reus of any of the offences beyond a reasonable doubt; that the Occupational Health and Safety Act , being a penal statute, must be read and interpreted strictly and narrowly and, where there is an ambiguity, it must be resolved in favour of the defendant. In regard to count one, he submits that there was no removal of material from the bin and that the material in the bin was not bulk material. As well, there was no removal of material in the ordinary course of operation of the bin.

In regard to count two, there is a reasonable doubt that the overhead bin in question was a stope, pass, chute or a storage area and that there was a written procedure for the precautions to be taken before, during and after removal of the material as required by Section 84(1). In regard to count three, he submits that there is a reasonable doubt as the evidence indicates that the workers were extensively trained; were aware that the overhead feed bin should be stopped before any work was to be done and, therefore, what the workers did was a decision that they exclusively made.

In respect to count four, in essence, he submits that a safe means of access was provided by the very nature of the overhead bin as long as the workers had ensured that the shuttle plates were locked out and there were no moving parts. As well, there was a ladder available on site. In regard to the defence of due diligence and the branch of mistake of fact, he submits that the defendant reasonably believed that the supervisor and workers would perform their job in compliance with the information, instruction and supervision provided to them.

And based upon the two workers’ knowledge and experience together with the defendant’s safety program, the defendant objectively believed the injured worker would perform his tasks as assigned and not engage in unauthorized conduct. In regard to the second branch of the defence of due diligence, Mr. Keith submits that this branch requires the defendant to prove that there was an Occupational Health and Safety Act program and that it was reasonably implemented.

He further submits that the employer does not have to foresee every possible hazard and does not require the employer to foresee unexpected or uncontrollable circumstances that might create or exacerbate a workplace hazard. He further submits that the Occupational Health and Safety Act does not impose a duty on employers to anticipate every possible failure of equipment, machinery or process only that the precautions taken by a defendant be reasonable.

He submits the defendant could not have foreseen the workers’ conduct because the defendant had made reasonable efforts to develop an Occupational Health and Safety Act program and ensure it was effectively implemented on an ongoing basis. THE CROWN Ms. Gordon-Fagan submits that the Crown has proven the actus reus of all of the counts beyond a reasonable doubt. In regard to count one, Ms. Gordon-Fagan submits that the workers should not have entered the bin to remove the bulk material and that

Section 60 is clear in its meaning. She states the material in the bin was bulk material. In regard to count two, she submits that the overhead bin is a storage area and that the company’s written procedure was not followed. She also emphasizes that all three workers stated that they had never seen the bin procedure.

In regard to count three, Ms. Gordon-Fagan submits that the evidence is clear that the workers were doing work on the shuttle plates while the shuttle plates were moving and powered by an electric motor and that this is certainly a breach of Section 185(7) of the regulations. In regard to count four, the Crown submits there was no safe means of access provided by the employer for access into the bin as was necessary by Section 46(2) of the regulation and that a safe means of access must be a walkway, stairway or ladderway as indicated in Section 46(1) of the regulations.

She further states that the ladder mentioned in the evidence was never used or intended to be used by the employees to access the bin and that Mr. Roswell had to run to get it after the accident. In regard to all of the counts, the Crown submits that they have been proven beyond a reasonable doubt based on the evidence and that an employer must make certain the regulations are complied with. In regard to the first branch of the defence of due diligence, mistake of fact, Ms.

Gordan-Fagan submits that the defendant could not have reasonably believed that the workers were doing what they were supposed to be doing because the defendant had not ensured that they knew the bin policy. As well, the supervision by Mr. Mitchell was only once per week and by Mr. Hodgson, the Health and Safety Coordinator, once per year when he visited the Bowman Pit. Ms. Gordon-Fagan submits that Mr. Mitchell took it for granted that Mr. Wilkin and Mr. Hutchinson knew what they were doing. In regard to the issue of locking out and the log book, she submits that Mr.

Mitchell had never been at the Bowman Pit to observe the workers on any of the dates that were entered in the log book including the winter shutdown and cleaning of the bin. As well, of all the log book entries there were only two that clearly related to work inside the bin. Therefore, she submits the defendant was blindly counting on the workers to do what they were supposed to do which was inappropriate. In regard to the second branch of the defence of due diligence; that the defendant took all reasonable care, Ms.

Gordon-Fagan submits quite succinctly that although the defendant had a system, it did not ensure that the system was followed because there was not proper supervision. THE EVIDENCE

SUMMARY OF EVIDENCE OF JAMES MILNE James Milne is an Occupational Health and Safety Inspector with the Ministry of Labour assigned to the mining program and has been with the Ministry since May 2006. He has over 20 years experience in the surface mining industry; both in the United Kingdom and Ontario. He has held positions as plant operator and quarry manager and has a Bachelor of Quarry Engineering from Leeds University. He also received training for eight months when he started with the Ministry.

On November 18 th , 2008, he attended the Bowman Pit operated by The Murray Group as a result of receiving information that a worker was trapped in the bin. He spoke to an Ontario Provincial Police officer and received information from him. He took statements from two witnesses, Glenn Wilkin and Jaime Roswell. He wrote up a field visit report and left the site at 6:50 p.m. He returned the next day and took photographs at the scene which were entered as Exhibits Two(b), Two(c), Two(e), Two(f), Two(g), Two(

h) and Two(i). He measured the depth of the bin in question from the top where the material enters to the shuttle feeders to be 3.5 metres. He met with the health and safety coordinator, Chris Hodgson, and requested training records for the workers involved, procedures and safety related information regarding the incident and a

Section 52 Report which is a report from the employer when a worker is injured and requires medical attention. He did a field visit report and wrote an order for contraventions under the mining regulations. He also requested the employment records for Steven Hutchinson. On November 24 th the inspector took a photograph of a sign at the entrance to the Bowman Pit and of a haul truck. These two photographs were entered as Exhibits Two(

a) and Two(d). On that date he received The Murray Group 2007 Safety Manual and a copy of the company 2007 Health and Safety Policies and Procedures, the training records of the workers involved in the incident, the

Section 52 notice and the WSIB Form 7 procedures. The inspector took a statement from Steven Hutchinson and a statement from Brad Mitchell, who was the pit manager. On November 26 th , the inspector received a copy of the new or revised bin entry procedures. Mr. Hodgson showed him a copy of the

Bin Safety Procedures dated 2006. Inspector Milne described the overhead feed bin as basically a storage container with sloping sides to facilitate sand and gravel moving to the bottom. The sand and gravel is dumped from the bottom of a haul truck through a grate at the top of the bin. At the bottom of the bin are two machines that move back and forth shuttling the sand and gravel material through a chute onto a central conveyor belt which conveys the material to a processing plant. The shuttle feeders are powered by an electric motor that is powered by a diesel generator.

Inspector Milne indicated that the Ministry of Labour does not provide procedures or draft procedures but do provide guidance if an employer has a specific question. He has never provided guidance material to The Murray Group; nor to any surface mining company. He agreed that Section 84(1) is a general requirement for written procedures and does not say what the procedures should contain. Inspector Milne did not consider Steven Hutchinson and Glenn Wilkin supervisors as they were not responsible for hiring and firing. They reported to Bradley Mitchell who was a supervisor.

He was not present when the accident occurred and he agreed there is nothing in the Occupational Health and Safety Act that requires a supervisor to be present at all times when work is being done by workers. The Murray Group has a Joint Health and Safety Committee. Prior to the accident there was a bin safety procedure. After the accident the procedure was revised.

The inspector indicated that the Occupational Health and Safety Act is based upon an internal responsibility system which sets out roles and responsibilities for all workplace parties including workers and, that workers and supervisors have a duty to follow an employer’s health and safety procedures.

SUMMARY OF EVIDENCE OF GLENN WILKIN Glenn Wilkin has been an employee of The Murray Group for 40 years and has worked at the Bowman Pit since 2005. He had been told by Brad Mitchell that it was time for the winter shutdown. Brad Mitchell was his boss. On November 18 th , 2008, in the morning, they pulled the gravel lines and the sand lines out. In the afternoon, they decided to clean the feeder shuttle plates in the overhead bin. They cleaned off loose product that was on top of the bin using a skid steer and three round mouth shovels. There was about 14 inches of gravel on the plates. Mr.

Wilkin stated that The Murray Group make asphalt and process aggregate for concrete or asphalt. At the Bowman Pit they wash the gravel and separate the stone from the sand. The gravel is firstly dropped into the feeder bin by a truck. When the bin is full, the shuttle plates move back and forth with the gravel working its way down through a feeding hole onto a belt that is positioned directly beneath the shuttle plates. It is taken to a screen where the gravel is then separated from the sand. In the afternoon they decided to clean the shuttle plates.

Steve Hutchinson and he went through the grates at the top, one on each side, walking down along the sides of the bin on the gravel with the assistance of a shovel and not using a ladder even though one was at the site. They were cleaning the shuttle plates with a shovel to get the gravel off of them but could not see one another because of a divider at the bottom of the bin. He heard Steve Hutchinson shout: “Shut it off,” presumably to Jaime Roswell who was acting as a spotter above the bin.

He climbed over the divider and saw Steve Hutchinson pushed up against the feeding hole that goes to the conveyor by gravel. He tried to extricate him but could not and paramedics eventually did. The shuttle plates were moving when they were cleaning them because if they were shut off it would take longer to clean and they thought it was safe. In the past they used the same procedure in accessing the bin with the plates moving but had an additional worker. Mr. Wilkin described his position with the company as a worker but later indicated that he and Steve Hutchinson were co-foremen.

Specifically he indicated between 2005 to the end of 2007 he performed the task of cleaning the shuttle plates 10 to 12 times. Earlier he indicated it was five or six times. In 2008 he indicated a couple of times or three times that he performed the task. On all of these occasions the task was performed in the same manner as he was doing on November 18 th in accessing the bin and cleaning the bin with the plates on. The only difference was there was a fourth person. Brad Mitchell was not present on any of these previous occasions.

Mr. Wilkin did not know of any procedure for working in the bin. He recalled seeing a written procedure after the accident. He had not reviewed the safety manual until after the accident. Mr. Wilkin estimated the amount of gravel around Mr. Hutchinson to be about one to two wheelbarrows full with a weight of three to four hundred pounds. Mr. Wilkin completed a number of modules of mandatory training under the Common Core Surface Miner Training with Bradley Mitchell and Chris Hodgson doing a large part of the training.

He received safety training on June 11 th , 2008 titled: “Safety Training in the Role of Workplace Parties.” He attended a 2008 Spring Start-up Meeting. He attended a Safety Talk dealing with confined space. He attended a Safety Talk titled: “Working Alone Safety Talk.” He attended the 2007 Spring Start-up Orientation. He attended the Spring Start-up Meeting for 2007. He attended a lift truck operator certification course. He attended the 2006 Spring Start-up Safety Meeting. He attended a May Safety Talk – Housekeeping.

He attended in 2005 a course regarding Workplace Hazardous Material Information System as well as in 1989. He attended a course titled: “Lockout and Conveyor Maintenance,” in 2001 and learned the importance of equipment being stopped and locked out when working on a conveyor belt or other moving equipment. He was given first aid training including CPR paid by the company. He attended a course in welding safety. He attended a course about guarding and the importance of guarding around moving parts, such as conveyors, and making certain they are locked out when working on them.

He received training in 1994 in lockout procedure which dealt with equipment being locked out when working on it. Mr. Wilkin identified a copy of a book kept at the facility where he was working which recorded equipment that was locked out. This was the Lockout Record Book and was entered as Exhibit 12. This was part of the company safety policy to make certain no one would be hurt and Mr. Wilkin was involved in the recording of the locking out of equipment. The conveyor belt would be locked out when doing work on it.

Often the reason for a lockout would have to do with set up and repair including repair to the conveyor belt. There would be a lockout from time to time when repairing or replacing the shuttle plates because it could be a hazard to take them out while moving and on the day of the incident if the accident had not occurred there would have been a lockout when the shuttle plates would have been taken out. Both he and Mr. Hutchinson felt it was safe to do the cleaning of the shuttle plates with them on because they were standing and not near the conveyor.

He knew the shuttle plates were moving and didn’t want to shut them off because it would have slowed down the cleaning process and taken longer. Mr. Wilkin was again referred to the Lockout Record Book. Mr. Wilkin agreed that he had been asked by Mr. Mitchell to not only follow the company lockout procedure but to make a note of it and that is what he did. The sketch or diagram in the book was made to identify the equipment to be locked out. Mr. Wilkin was referred to several entries in the log book: August 17 th , 2007 – Weld Plate on Shuttles, with the initials of both Mr. Wilkin and Mr.

Hutchinson; October 25 th , 2007 – Work on Shuttle Plates, with the initials of both Mr. Wilkin and Mr. Hutchinson. Mr. Wilkin agreed with defence counsel’s statement that if the shuttle plates move it is not safe for he or Mr. Hutchinson to go into that area unless the machines are shut off and the power source locked out. Another entry he was referred to was October 29 th , 2007 – Fix Number One Shuttle Flashing, which would mean cleaning off the shuttle board and removing six or nine bolts on the side; November 18 th , 2008 – Pulled Lines Apart, referring to the conveyor belt lines. Mr.

Wilkin was aware that there was a ladder on site and that he could have used the ladder to access the bin but, he was comfortable walking down on the material on an angle. He indicated that putting a ladder in the bin would be inappropriate because it was crowded in there. Mr. Wilkin agreed with defence counsel that the material provided a safe angled walkway with the help of a round-mouthed shovel which was used to assist in his footing and also for scraping any loose material down onto the shuttle. This was done as they were

walking down into the bin. In the bin there was a cross piece or ‘V’ divider in the middle. One shuttle is on one side of the divider and one shuttle is on the other side. In order to get from one side to the other you had to climb over the divider. Mr. Wilkin felt safe working on the one side of the divider. In regard to exiting the bin, Mr. Wilkin indicated you could either climb through the feeder hole in the bottom or climb out by getting to the ‘V’ point and swinging up onto the top. He felt safe and comfortable without a ladder. Mr. Wilkin climbed over the divider after he had heard Mr.

Hutchinson holler: “Shut it off.” Mr. Roswell had to go from where he was to the control panel to shut it off. He saw that Mr. Hutchinson’s legs were twisted underneath him and he was sitting on the shuttle plate. It took 30 to 45 seconds from the time he heard Mr. Hutchinson call out to Mr. Roswell for Mr. Wilkin to climb over the divider and observe Mr. Hutchinson. Mr. Hutchinson’s body was in the hole where the gravel goes out. Mr. Wilkin agreed with defence counsel that he couldn’t see if Mr. Hutchinson’s knees were in the area where the shuttle plates were moving. Mr. Wilkin could not free Mr.

Hutchinson and it took maybe 20 minutes for the paramedics to arrive. Mr. Wilkin was concerned that Mr. Hutchinson was badly injured. Mr. Hutchinson was brought out by emergency services on a backboard and harness after they put a ladder into the bin. Prior to the incident, Mr. Wilkin knew there was a ladder at the asphalt plant but did not know exactly where it was at the time of the incident. Mr. Wilkin could not see how the material came in contact with Mr. Hutchinson because he was on the other side of the divider. Mr. Wilkin agreed with defence counsel’s suggestion that apart for the work he and Mr.

Hutchinson were doing in emptying the bin, it was not going to be used to store or process any more material. In regard to getting some material off the shuttle plates on previous occasions which may have been as many as 10 to 12 times between 2005 and November 2008, Mr. Wilkin indicated that occasionally the shuttle plates and conveyor belt were locked out. Sometimes it was. Sometimes it was not. And that would depend on how much material was on them. Mr.

Wilkin agreed with defence counsel’s suggestion that he was familiar with the company’s policy about locking out machinery before working on it and he should have locked out the conveyor and shuttle plates before going into the bin. On the day of the incident they were shorthanded and normally had a fourth person who stood by the control switch. Brad Mitchell could have been reached by cell phone or radio. Mr. Wilkin reiterated that he had received training in regard to the Surface Miner Common Core Training from Brad Mitchell and Chris Hodgson and he received a copy of the document.

He received training including: “Work Safely in Job Environment, Lockout and Tag Equipment and Energy, Lockout and Tag Mobile or Portable Equipment.” He was trained and passed all the courses or training that he took and that applied to him in the Surface Miner Training Manual. In order to pass any of the training units someone had to observe him doing the safety instruction and, over the years, that someone was mostly Brad Mitchell. As well, the company had a spring start-up meeting each year commencing in 2006. These meetings would be attended by Mr. Hutchinson, Mr. Roswell, another truck driver and himself.

Usually he met with Chris Hodgson, the safety coordinator, and occasionally Brad Mitchell would attend. The two-way radio that can be used to communicate with Brad Mitchell is paid for by the company. Mr. Wilkin did not feel unsafe by not shutting down the shuttle plates on November 18 th , 2008. Prior to working at the Bowman Pit, Mr. Wilkin had a supervisory role over one person at a location in Moorefield where gravel is

crushed. In regard to the log book, there would be an entry every time he was involved in a lockout. Brad Mitchell would occasionally check the black book. The only time they would take material off the shuttle plates was if they were going to be pulled out.

SUMMARY OF EVIDENCE OF JAIME ROSWELL Jaime Roswell works as a haul truck and loader operator at the Bowman Pit for The Murray Group. He is in his fourth year with the company. His supervisors are Glenn Wilkin and Steve Hutchinson who are co-foremen. He reports to them and they report to Brad Mitchell. On November the 18 th , Mr. Mitchell was not present nor was he on previous occasions. On November 18 th , in the morning, Glenn Wilkin, Steven Hutchinson and he cleared out the conveyor lines. After lunch they decided to empty the bin because it was full of gravel.

He ran the loader so that material was run off onto the conveyor into the loader bucket. The shuttle plates were on. After the bin was empty he used the skid steer to remove material from the top of the bin by using the bucket to scrape off the material. After lunch he acted as a spotter at the top of the bin while Mr. Wilkin and Mr. Hutchinson went into the bin to clear material. When Mr. Hutchinson was almost finished cleaning material off of the shuttle plate, gravel fell in behind him pushing his legs into the chute. Mr.

Hutchinson yelled to shut it off and he ran to the control panel which is 20 feet away and shut off the shuttle plates and conveyor which took no more than 10 seconds. He then called 9-1-1. He did not have the location details and didn’t find them on the side of the trailer because he was in a panic. He got them from the scale house. It took two minutes driving to get to the scale house. He then went to help Mr. Hutchinson and saw that his legs were bent backwards underneath him. The firefighters arrived. He went to the control panel and locked it out.

He got a ladder from the asphalt plant because they needed one to get into the bin. He got the ladder using the pick-up truck and it took under two minutes. They went down and brought Mr. Hutchinson out on a back board. The work that they had been performing had been done by him two to three other times. On previous occasions, Mr. Wilkin and Mr. Hutchinson had done the same procedure; walking down the sides of the bin and out the same way with the shuttle plates running, he believed. On previous occasions a fourth person was present who would have been at the control panel. On the previous occasions Mr.

Mitchell was not present. On November 18 th he didn’t know if they were using a written procedure. He wasn’t aware of any cleaning shuttle plate procedure for the bin. He became aware after the accident. He was aware of The Murray Group health and safety policy but hadn’t reviewed it and it was on the side of the lunchroom trailer. In regard to training, he was provided with the Ministry of Training Colleges and Universities Surface Miner Training Program. Training was given by Brad Mitchell and sometimes Chris Hodgson and they would verify that he understood the elements of the program.

He successfully completed a number of training units including: Working Safely in the Job Environment, Lock and Tag Equipment and Energy. As of April 8 th , 2008, he was very familiar with the lockout and tag provisions; however, since he was a truck driver, it was Mr. Wilkin or Mr. Hutchinson that were doing most of the lockouts. He agreed with defence counsel that Mr. Wilkin and Mr. Hutchinson are safety conscious and that the company was safety conscious. Mr.

Roswell identified a document titled: “New Employee Orientation Checklist,” (see Exhibit 16), that Chris Hodgson had gone through with him when he started working for The Murray Group. They had gone through the contents of the document in Mr.

Hodgson’s work truck at the Bowman Pit. This took two to three hours. Mr. Roswell knew that the company’s health and safety policy was kept at the scale house and at the lunchroom in the work trailer at the Bowman Pit. Mr. Roswell agreed that he attended a Spring Safety Blitz seminar in Guelph on April 3 rd , 2008 as well as a safety talk: “Role of Workplace Parties,” in 2008. As well, he attended, during his employment, safety talks titled: “Working Alone Safety Talk, Safety Talk Confined Space, Fuel Handling,” and Spring Start-up Meeting 2008. Mr.

Roswell agreed with defence counsel that Chris Hodgson had gone through The Murray Group health and safety policies and procedural manual with him when he started (see Exhibit 10). Chris Hodgson did not go through the whole document but encouraged him to go through it himself. In regard to the bin procedure dated 2006, Mr. Roswell did not recall Mr. Hodgson pointing this document out to him but agreed with defence counsel that it was possible that he showed it to him but he could not recall. He also agreed that he may have thought that it was not all that important to him as he was a truck driver. Mr.

Roswell agreed with defence counsel that rather than being unaware of the bin procedure, he was not sure if there were any procedures for entering the bin. On November 18 th , 2008, he did not use the truck to haul material and dump it into the bin. Mr. Roswell indicated that when the shuttle plates and conveyor belt were stopped and a lock put on them, no one could operate them. Mr. Roswell had no concerns for Mr. Wilkin and Mr. Hutchinson’s safety when they entered the bin with the plates moving. Just prior to the material coming down on him from behind, Mr.

Hutchinson was hand brushing little parts of material on the moving shuttle plates. He was on his hands and knees facing the chute. He agreed that it would be about two average size wheelbarrows full of material that came down on Mr. Hutchinson. The material on the back wall did not appear to be unstable before it came down. It appeared to Mr. Roswell that Mr. Hutchinson’s lower legs or knees were coming into contact with the moving shuttle plates.

SUMMARY OF EVIDENCE OF STEVEN HUTCHINSON He is an employee of The Murray Group and has been so for almost nine years and started working in the Bowman Pit in 2005. Before that he was the wash plant foreman operating the wash plant and maintaining it. On November 18 th , 2008, he was still wash plant foreman. On November 18 th , 2008 he was working with Mr. Wilkin and Mr. Roswell. In the morning they pulled the conveyors out and tore the pipes apart. After lunch he and Mr. Wilkin decided to clean the bins with Mr. Roswell as a spotter. This was part of the winter shutdown preparation.

They started the shuttle plates up to run loose material out and then he and Mr. Wilkin walked into the bin; he on one side, Mr. Wilkin on the other. They walked on the gravel to get down. He shovelled gravel off the shuttle plate and when it was almost done, gravel fell in behind him waist high forcing his legs into an opening that leads to the conveyor pinning him there. His knees were basically touching the shuttle plates. He yelled to Mr. Roswell to shut the bin off and after that told him to call 9-1-1. Mr. Wilkin then came over to help until the paramedics came.

Firefighters put him on a backboard and up a ladder to get him out. The ladder was not at the bin before the accident. He had severe pain in his legs which was relieved when the plates were shut off. At the hospital he was diagnosed with soft tissue injuries, released the same day with crutches and returned to work two days later with light duty for one week.

In 2008, he had performed the task of cleaning the bin three to five times. On these occasions there was a fourth man at the control panel. On those occasions they accessed the bin the same way; by going in through the grate at the top, walking down the side on gravel with no ladder or stairs to assist. To get out they would go up the gravel and out the top. The gravel that came down on him was the gravel that he walked down on. On the prior occasions the shuttle plates were on. The shuttle plates were kept on because it is easier to clean. On the previous occasions it was Mr. Wilkin and he in the bin.

From the spring of 2005 to 2007, on the occasions regarding winter shutdown preparation, they did not do anything differently except that there were four men. On November 18 th , 2008 and before, he had no familiarity with the bin clean out procedure. He first became aware that there was a bin clean out procedure after the accident. Brad Mitchell was the supervisor on November 18 th , 2008 and became his supervisor in 2005. From 2005 until November 18 th , 2008 he did not review with Mr. Mitchell any written procedure regarding winter shutdown preparation of the bin. Between those dates, he and Mr.

Wilkin made the decision to proceed in a particular manner with the winter shutdown preparation of the bin. It was he and Mr. Wilkin who would decide and they did it. As of November 18 th , 2008, he had Common Core training, various safety trainings, lock and tag, hazardous materials as well as other training. In regard to The Murray Group Health and Safety Policies and Procedural Manual, they were to read the procedure before doing the task. In regard to November 18 th , 2008 and on prior occasions when dealing with winter preparation shutdown of the bin, he did not refer to the procedure. Mr.

Hutchinson received training and passed courses under the Surface Miner Program of the Ministry of Training Colleges and Universities which included: “Work Safely in the Job Environment,” “Lock Out and Tag Equipment and Energy,” and “Lock Out and Tag Electrical Equipment.” Mr. Hutchinson agreed with defence counsel that the training modules would be reviewed and he would be assessed in the field to confirm his understanding of both the theory and practice.

Other training modules included: Dealing with hazardous or potentially hazardous conditions in the workplace; Work around stationary and portable equipment; Work around operating conveyors; Lockout and tag on mobile and on portable equipment; Operate portable conveyor; Inspect workplace for hazardous or potentially hazardous conditions; Set up and secure portable conveyor; Perform maintenance on non-moving conveyor; Follow lockout and tag procedures as well as other modules dealing with the safe operation of conveyors. Mr. Hutchinson agreed with defence counsel that Mr.

Mitchell would have a good reason to believe that he was well versed and clearly understood the importance of stopping equipment that was moving and locking it out. Mr. Hutchinson had passed all of the training modules. Mr. Hutchinson was made aware by a Mr. Biesinger, his previous supervisor, that the general rule was to stop a moving part of equipment and lock it out to prevent someone from starting it up. On November 18 th , 2008, the shuttle plates could have been locked out but were not because he and Mr. Wilkin did not think they posed a hazard. He and Mr. Wilkin were both co-foremen.

The control panel is about 80 feet away from the bin in question. Mr. Hutchinson was aware of the control panel and its operation. Mr. Hutchinson agreed with defence counsel that on November 18 th , when he went into the bin, it was his intention to stay a safe distance away from the shuttle plates and the conveyor belts that were moving. Inspector Milne never asked him about his training. Mr. Hutchinson was given a copy of the Surface Miner Training Standards (see Exhibit 15) as well as Mr. Wilkin and Mr. Roswell. Mr.

Hutchinson agreed with defence counsel that the company had a lock and tag out procedure in place that he had been trained on through their own safety manual. He also agreed that his choice not to lockout on November 18 th was based on his view that the work could be done safely and that he need not follow the safety procedure. He read the Surface Miner Common Core Training Standards Manual after the company gave it to him.

He received health and safety training through the company including the Spring Start-up Meeting 2008. He agreed with defence counsel that this program was to remind and refresh people about safety on the job. He also attended a safety talk: “Roles of Work Parties.” He was given a company health and safety procedure titled: “Responsibility System – Foreman,” which was part of the material handed out by Chris Hodgson at the spring start-up meeting 2008.

This procedure dealt with assisting foremen in meeting their responsibilities for safety of employees and, as well, that workers work in the manner required by the Occupational Health and Safety Act and to protect the health and safety of the worker. Mr. Hutchinson was both a worker and co-foreman. Mr.

Hutchinson also received training and attended programs in: “Working Alone, Working in Confined Space, Spring Start-Up Meeting 2007, Spring Start-up Meeting 2006, Canadian Red Cross and Workplace Hazardous Information System.” The 2006 Spring Start-up Safety Orientation (see Exhibit 20) dealt in part with lockout procedures and the responsibility of foremen to ensure the procedures were strictly adhered to. Mr. Hutchinson agreed with defence counsel that this reinforced the Surface Miner Common Core Training.

He also agreed with defence counsel that when he joined the company he was advised of the importance of following the health and safety policy and procedures. On the day of the incident there was no material dumped into the bin. There might have been left over material in the bin and that day it needed to be cleared out. They were taking the steel shuttle plates out to repair during the winter. The shuttle plates had been taken out and repaired once before, he believed, and this was before November 18 th .

He agreed with defence counsel that the number of times he had worked in the bin prior to the incident was an estimate. He had no communication with Brad Mitchell on the day of the incident but, he was available by cell phone or radio. It was likely that Mr. Mitchell communicated with them to commence the winter shutdown. Mr. Hutchinson did not make a request for a fourth worker because he thought they could handle it. Mr. Mitchell would attend the Bowman Pit roughly once per week. In the morning of November 18 th , they moved a number of conveyor belts and the power source was stopped and locked out beforehand.

Mr. Hutchinson was referred to the log book of lockouts. This log book gave a complete

summary of all the work done. It confirmed what was done and that a lockout procedure took place. There was a sketch of different sections of the pit in the log book marked A, B, C, D. The feed bin is located in

section ‘D’. When there was a lockout the employees involved would put their initials in the log book in regard to the work done and the

section that was locked out. Mr. Hutchinson was referred by defence counsel to different entries in the log book where a lockout was documented. The following were some of the entries: November 7 th , 2008 – Weld Plate on Shuttles. These shuttles were the same shuttles involved in this incident. October 9 th , 2008 – Set Down Flashing, Fix Shuttle. September 18 th , 2008 – Clean Out Under Shuttles. These were the same shuttles involved in this incident. On the same date: Fix Laces Flashing on Belts. December 3 rd , 2007 – Pull Out Shuttles.

This procedure involved a lockout of the whole plant and was the annual winter shutdown which involved pulling out the shuttles for inspection and repair. Mr. Hutchinson agreed with Mr. Wilkin’s evidence that before anybody went into the bin, especially for year end maintenance, that sometimes it was locked out and sometimes it was not and that he was mistaken in his earlier testimony. The log book was provided by the company and Mr. Mitchell had asked him to fill it out reliably, honestly and accurately. Mr.

Hutchinson was taken through other entries in the log book; many involving the shuttles where he and/or Mr. Wilkin had made the entries. Mr. Hutchinson agreed with defence counsel that, generally speaking, the plant and the shuttles were shutdown and locked out before any work or anybody went near them. One of the entries where there was a lockout was described as: “Shovel Shuttle Plates Off,” which Mr. Hutchinson agreed was very similar to the work being done on November 18 th , 2008 but, that it may have been for another reason other than winter shutdown. Mr.

Hutchinson agreed with defence counsel that in 2007 there were at least 10 examples of the shuttle plates and related conveyor belt beneath the feeder bin being powered off and locked out in accordance with the lockout procedure of the company.

Mr. Hutchinson agreed that there were several examples of the lockout procedure being used in 2008 where area ‘D’, among others, was locked out which included the shuttle plates and the conveyor belt associated with the bin. Mr. Hutchinson agreed that by and large he was following the lockout procedure including the morning of the incident. Mr. Hutchinson agreed with defence counsel that if the shuttle plates had been stopped and locked out, he could go into the bin and clear off the shuttle plates with a shovel or his hands so that the shuttle plates could be taken out.

The shuttle plates weighed maybe six to eight hundred pounds and to take out the shuttle plates they usually used a skid steer and wrenches. Mr. Hutchinson agreed that both he and Mr. Wilkin walked down the bin. He was aware that there was a ladder in the gravel pit. He did not, nor did Mr. Wilkin think they needed a ladder to access the bin safely because it is just walking down gravel on the sides. Mr. Hutchinson disagreed with defence counsel that the bin had a gravel walkway; just that the sides are all gravel.

Later he agreed with defence counsel that you could describe the gravel that he walked down on an angle as a gravel walkway. He further agreed with defence counsel that it was sufficiently safe so that he didn’t think he needed a ladder. He also agreed that if he did need a ladder there was one on site. He believed the gravel was safe to walk on and that it was not unstable. When he and Mr. Hutchinson entered the bin there was not a significant amount of sliding or movement of the gravel. In regard to not following the lockout procedure in regard to the shuttles, Mr.

Hutchinson didn’t think it was too unsafe and when defence counsel suggested that he didn’t think it was dangerous, Mr. Hutchinson said, “Not really.” Mr. Hutchinson believed he was standing up facing the opening moments before the material came down. There was no warning before the material came down. Mr. Hutchinson agreed that it was the equivalent of two wheelbarrows full. Mr. Hutchinson indicated after the material came down his feet and knees came in contact with the shuttle plates. Mr. Hutchinson agreed that the shuttle plates’ movement or vibration may have caused the material to slide. Mr.

Hutchinson did not think about that before deciding not to follow the lockout procedure and agreed with defence counsel that you can’t always anticipate everything that happens. Mr. Hutchinson received a disciplinary warning from the company. Mr. Hutchinson was referred by Ms. Gordon-Fagan in re-examination to some of the entries in the log book. In total, Mr. Hutchinson was referred to nine entries between August the 1 st , 2007 and December 3 rd , 2007. Of those entries, only one was where work was done inside the bin. In regard to the rest, he was either unsure or indicated that work was done outside the bin.

Mr. Hutchinson indicated that when working on the shuttle plate or shuttle drive where it involved emptying the bin, the machine would be locked out before they emptied it.

SUMMARY OF EVIDENCE OF BRADLEY MITCHELL Brad Mitchell works for The Murray Group and started working for them in the spring of 1978. He is presently pit manager and manages 12 active pits including the Bowman Pit. The Murray Group are in the production and laying of asphalt and the sale of sand and stone to companies for ready mix and road building. After aggregate is taken out of the ground with a loader, which is an oversized tractor with a bucket on the front, it is crushed down to whatever size is needed.

The crusher has many moving parts and the company has a lockout and tag procedure if maintenance work is going to be done on the crusher. The company has this policy to ensure that the machinery cannot move and injure a worker. Some material is loaded on trucks for sale or it would be taken to the washing plant to wash it. After the washing plant, the material is either used by the company for asphalt or sold to customers. Some of the crushed aggregate is stored at the pit in different stockpiles. Mr. Mitchell described Mr. Wilkin and Mr. Hutchinson as workers. They were not also known as co-foremen.

Jaime Roswell was a haul truck operator. There was also an Eric who worked as a haul truck operator at the Bowman Pit but Mr. Mitchell could not remember his last name. There was also an Evan Gower, Brian Townsend and a Val Ross. Mr. Hutchinson and Mr. Wilkin reported to

him as he had overall responsibility for the Bowman Pit. He would spend approximately six hours per week at the Bowman Pit. Mr. Mitchell’s office at Mount Forest was approximately 40 minutes away by vehicle. Mr. Mitchell worked 60 hours per week with 40 of those hours being out of the office. Mr. Wilkin could call him at any time because of the mobile phone system. Mr. Mitchell did not have to communicate with Mr. Wilkin or Mr. Hutchinson unless something was needed because their job was routine. In regard to the overhead bin, it feeds the wash plant.

Trucks dump material into it and the shuttle plates drop the material onto a conveyor belt to go to the washing plant. After the material is washed it is stockpiled in different stackers for sale and use. Mr. Mitchell described Mr. Wilkin’s and Mr. Hutchinson’s work as mostly cleaning up around belts and stackers using a skid steer (see Exhibit Two(d)) and watching the belts, screen decks, classifiers and screws to make certain everything was functioning properly. From time to time, they would have to shut down and work on or clean up moving parts and equipment.

They had been given training and instruction on how to do that safely. Mr. Mitchell had instructed Mr. Wilkin and Mr. Hutchinson to shut down for winter. They had done this on previous years. The purpose of the shuttle plates was to regulate the feed of the aggregate material going to the plant. Mr. Mitchell had discussed repairing the shuttle plates with Mr. Hutchinson before the incident. He gave Mr.

Hutchinson no specific instruction about locking and tagging out the power source to the shuttles because they had been trained in lockout and tag out and prior to the incident he was known to be a safety conscious worker. Mr. Mitchell thought that they would turn off the power and lockout. A worker would put his own lock on in the lock and tag process so that no one else could take it off and they would be away from the equipment when it was to be restarted. Mr. Mitchell indicated when workers are in the feed bin, no material would be expected to be dumped in because it would be unsafe. Mr.

Mitchell did not attend the Bowman Pit after he had heard of the incident because he was not needed. Mr. Mitchell was shown a document outlining the company’s organizational structure (see Exhibit 22) as well the locations of the three main pits; the Bowman Pit, the Seiling Pit and the Murphy Pit that he was supervising. The company also has other pits. The Bowman Pit, which is very large – about 300 acres, consists of five separate licenced pits. Mr. Mitchell reports to Stephen Murray, the president of the company. Mr. Mitchell would never have permitted Mr. Hutchinson or Mr.

Wilkin to work contrary to company policy. He indicated Mr. Wilkin and Mr. Hutchinson had some training in lock and tag equipment procedure. From time to time when he went to the Bowman Pit he observed them locking out equipment and isolating the power source. Mr. Mitchell passed courses of the Surface Miner Common Core Training which included: Operating a portable crusher and stationary crusher and included locking out power sources. Mr. Mitchell participated in some health and safety training from the company which included welding, safety and lockout procedure.

The company had spring start-up meetings and dealt with guard lock and tag procedures. This was refresher training. He attended the 2008 Spring Start-up Meeting where one of the topics reviewed was machine guarding. Titles of employees were not a big thing with the company. Mr. Mitchell was referred to a document for Safety Responsibility for Foremen and he indicated that would apply to Mr. Wilkin and Mr. Hutchinson. Mr. Mitchell was referred to a lockout log book. This book was kept to verify that a certain piece of equipment was locked out when doing maintenance, repair or replacement.

The purpose of the book was to track the lockout procedures and make sure the procedures were done. If you were not going to replace shuttles you would not need to take out every bit of material out of the bin. Notations in the log book for 2006 that indicated tear down and clean up would relate to, among other things, the activity of shutting down the overhead bin.

A period from October 18 th to the 20 th and the 23 rd and 24 th , 2006 were related to the preparation for winter shutdown. A lockout took place on those dates involving sections A, B, C and D initialled by Steven Hutchinson and Glenn Wilkin. Mr. Mitchell did not supervise them on those dates because they did not need him. They did the job safely without him. He received no requests from them to attend and there was no injury or incident resulting from the 2006 shutdown.

An August 1 st , 2007 entry in the log book stating, “Pull Shuttle Drives Out,” refers to the units that move the shuttles and they were going to be replaced or repaired or their speed changed. Steven Hutchinson and Glenn Wilkin initialled a lockout for this procedure. If Mr. Mitchell had looked at this entry it would mean to him that they had done work on the shuttles under the feed bin and followed the lockout and tag procedure.

In regard to an August 17 th , 2007 entry into the log book, “Weld Plate in Shuttles,” this referred to replacing liners on the shuttle plates and showed that Steven Hutchinson and Glenn Wilkin were involved and followed the lockout procedure. Mr. Mitchell received no communication regarding safety concerns about this activity. Prior to November 18 th , 2008, Mr. Mitchell had never observed Steven Hutchinson or Glenn Wilkin working around any moving parts of any kind when they should have been locked out.

An October 4 th and 5 th , 2007 entry: “Replace the Keys in the Number Two Shuttle,” would show that there was a lockout, and the same for an October 19 th , 2007 entry: “Fix Number Two Shuttles.” Glenn Wilkin and Steven Hutchinson had their initials in the log book. Entries for work done October 25 th to October 29 th referred to work done on the shuttle plates by Glenn Wilkin and Steven Hutchinson. Entries from November 30 th to December 3 rd , 2007 referred to end of season shutdown. There were further entries in 2008 identified by Mr.

Mitchell dealing with maintenance regarding the shuttle plates or around them involving Mr. Hutchinson and Mr. Wilkin. Mr. Mitchell had not received any complaints about them working on the shuttles without the power being locked out and tagged. Mr. Mitchell believed in 2008 that whenever they did work they would follow the lockout procedure. Mr. Mitchell was referred to the Modular Training Standards for Surface Miner Common Core Training and his personal training file. Mr. Mitchell trains other employees in the company in regard to Common Core and received training in “Train the Trainer” course.

As well, he has received training in regard to Surface Miner Common Core Training. Mr. Mitchell has trained approximately 40 employees in Common Core training. He provided instruction to Steven Hutchinson, Glenn Wilkin and Jaime Roswell. Mr. Mitchell specifically received training on the importance of lockout power sources as well as training in safe access and egress from workplaces. Mr. Hutchinson and Mr. Wilkin received training from him regarding lockout and tag procedure. Mr. Mitchell believed that they were working safely on the day of the incident. Mr. Mitchell was referred by Ms.

Gordon-Fagan to entries in the lockout log book. In total he was referred to 16 entries between October 18 th , 2006 and November 18 th , 2008. Of that total he indicated two referred to work done inside the bin, 12 to work outside the bin and there were two of which he was unsure. Mr. Mitchell was not present on any of those dates. Mr. Mitchell would randomly review the log book when he was at the location.

SUMMARY OF EVIDENCE OF CHRISTOPHER HODGSON Christopher Hodgson is the health and safety coordinator for The Murray Group and has been so since the summer of 2008. He started with the company in 2001 as a lab technician and also had safety duties. His duties as health and safety coordinator are to promote health and safety in the workplace. He keeps training documents, does workplace inspections and does accident investigations. He is a member of the eight member company Joint Health and Safety Committee. They discuss legislation, events at work and accidents.

On an average, he would inspect a place like the Bowman Pit once per year. There would be approximately 15 different workplaces involving these inspections and his

responsibilities. An inspection would usually involve the foreman in the area. He inspected the Bowman Pit before the incident but could not remember when. There is a health and safety board located at the Bowman Pit as well as the other pits (see Exhibit 26). The safety board would include safety alerts, The Murray Group Health and Safety Policy, the Emergency Response Plan, safety newsletters, the Spill Response Plan, First Aid Responders, Labour Board Safety Inspections and the Workplace Safety and Insurance Board Safety Group.

In regard to the Health and Safety Policies and Procedures Manual, it is a work in progress and new procedures are added. The Bin Safety Policy dated January 2006 was in place at the time of the incident and on November 18 th , 2008 it would apply to the overhead feed bin at the Bowman Pit. It was present at the Bowman Pit before and on the date of the incident. The lockout procedure in the bin safety policy would apply to the shuttle plates and the conveyor belt in the bin. In regard to the Lock and Tag Equipment Policy dated January 2006, Mr. Wilkin, Mr. Hutchinson and Mr.

Roswell received instruction on the procedure from Mr. Hodgson and from Mr. Mitchell. Each of the employees were provided with their own locks so that no one else could start the panel. Mr. Hodgson’s opinion regarding the incident on November 18 th , 2008 was that they did not follow the lock and tag out procedure. Mr. Hutchinson and Mr. Wilkin also had Surface Miner Common Core Training set up by the Ministry of Training Colleges and Universities. Mr.

Hodgson participated in the first three modules of the Common Core training which were: “Working Safely in the Job Environment, Lockout and Tag and Operate Hand and Power Tools.” The Lockout and Tag is similar to the company’s lockout procedure. In regard to modules, there is a performance evaluation and classroom portion. Mr. Hodgson took a number of courses including: Confined Space Rescue-Awareness (a due diligence course for management supervisors), a general Workplace Hazardous Materials Information System course, basic certifications for Joint Health and Safety Committees and Core Simulated Hazard Analysis.

Mr. Hodgson received a Certificate of Completion for Sector Specific and Construction Health and Safety Rep and a Certificate of Recognition for participation in the Surface Miner Common Core Module (knowledge component). The Murray Group paid for these if there was a charge. The company’s Surface Miner Common Core Participant’s Manual is given to all participants in the training including Mr. Hutchinson, Mr. Wilkin and Mr. Roswell. They would have received the “Workplace, Lockout and Tools” material.

The Murray Group spring start-up meeting began in 2006 and was to get employees thinking about safety and inform them of new procedures. The company’s lockout safety procedure was on the agenda for 2006. Material on the agenda is provided to the employees. The Murray Group was involved in a voluntary program with the WSIB whereby the company could receive a rebate on the insurance premium. The company was spot audited in regard to safety in 2007 as one of the participants in the civil safety group and received a score of 100 percent. The company had safety group action plans for 2006, 2007 and 2008.

One of the elements of the 2008 safety group action plan was machine guarding and they created a policy and distributed a manual to the employees and held an informal safety talk on the subject as well as a newsletter

article on the topic. Mr. Hodgson, in 2008, thought that the level of compliance by workers regarding the lockout and tag policy was adequate. Mr. Hodgson was not aware of any failure on the part of Mr. Hutchinson, Mr. Wilkin or Mr. Roswell regarding the locking out of the overhead feeder bin shuttle plates.

In regard to the bin safety procedure, Mr. Hodgson indicated that where it stated entry into the bin is carried out in conformance withlegal requirements that that statement meant that one could not enter somewhere which is not accessible which was not the case with theoverhead feeder bin. Mr. Hodgson determined that gaining access to the bin by walking down the sides of the bin on top of gravel withthe use of shovels was safe. Mr. Thibert, the Ministry of Labour inspector, had never made any recommendations regarding changes to the bin procedure.

Mr.Hodgson did not know if the inspector had looked at the bin procedure. THE LAW The Occupational Health and Safety Act is a public welfare statute; it is remedial in nature and is not to be given a narrow or technicalinterpretation but, should be given a broad and liberal one in light of its primary purpose which is to protect the workers. Regina v. Cityof Hamilton, (2002) 58 O.R. 3d p.37; Regina v. Timminco Ltd., (2001) (ON CA), 153 C.C.C. (3d) 521; Regina v.Campbell, [2004] O.J. No. 129; Regina v. Brampton Brick, [2004] O.J. No. 3025. Justice Sharpe of the Ontario Court of Appeal in Regina v.

Hamilton put it this way: “The Occupational Health and Safety Act is a remedial public welfare statute intended to guarantee a minimum level of protection forthe health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with thepurposes and objectives of the legislative scheme. Narrow or technical

interpretations that would interfere with or frustrate theattainment of the legislature’s public welfare objectives are to be avoided.” In regard to the offences for which the defendant is charged, they are all strict liability offences. Regina v. Timminco Ltd., (2001) (ON CA), 153 C.C.C. (3d) 521. The seminal case regarding these types of offences is Regina v. Sault Ste. Marie, (1979) (SCC), 85 D.L.R. (3d) 161. “The Crown need only prove that the defendant committed the prohibited act. There is noneed for the Crown to prove the accident or hazard was reasonably foreseeable.” Regina v.

Timminco Ltd., supra, Regina v. Rio AlgomLtd., (1998) 66 O.R. 2d p.674, Regina v. National Wrecking Co., [2005] O.J. No. 3578. I will quote Justice Fitzgerald in Regina v. Moran Mining, [2004] O.J. No. 5592 where reference is made to Regina v. Seeley & ArnillAggregates Ltd. and Regina v. Timminco. He states as follows: “The prosecution cites Regina v. Seeley & Arnill Aggregates Ltd. for the proposition that the mere occurrence of the accident prima facieimports the actus reus which would appear to be on all fours with the issues to be considered by this court.” In the Seeley case, Mr.

Justice Logan says: “The prohibited act mentioned in the regulations, in my view, is exposing a working in a hazardous situation to falling more than threemetres. The addition of the word ‘hazard’ to ‘exposing’, only changes the category of the offence from one of absolute liability to anoffence of strict liability. It does not turn it into a mens rea offence. The words must be read together to include one act. The Crowndoes not have to first prove beyond a reasonable doubt the exposing of a worker to the existence of a hazard and then prove a fall tookplace. It is not a hybrid offence.

A hazard can include a chance event such as an accident. If the Crown proves a fall by a worker ofmore than three metres took place while doing work required by the employer, it prima facie imports the offence. It does not matter if itwas caused by accident, negligence, recklessness or wilful neglect. If it occurred in a place where one might reasonably expect it not totake place, such a fact would be considered in a defence of due diligence or even mistake.” The prosecution cites Regina v.

Timminco to support the analysis of the decision in Seeley and that the fact of the accident and the fact ofthe fall proved the hazard and the fact that the worker was not hooked up at the time. The prosecution submits that that is all it has to doto meet the onus required by the legislation beyond a reasonable doubt and I agree. The prosecution need not prove the defendant had actual knowledge of the hazard. The prosecution need not prove that Moran Mining

was not aware that the worker was not tied off. Under the legislation the employer must ensure compliance with the legislation. The prosecution submits that the employer becomes theguarantor. If the prescribed act is done, then the employer has failed to ensure and the onus shifts and the question becomes; were allreasonable steps taken to avoid the accident. In regard to an employer, and specifically in regard to Section 25(1)(

c) of the Occupational Health and Safety Act, the duties imposed onan employer are high, stringent and strict virtually putting the employer in the position of an insurer to make certain that the prescribedregulations in the workplace have been complied with before work is undertaken by employees. Regina v. Wyssen, (1992) 10 O.R. 3dp.193; Regina v. Timminco, supra. As stated by Justice Megginson in Regina v.

Stoler Construction, November 28th, 1986 (unreported): “Each of the levels constructor, employer, supervisor has his own responsibilities to take every precaution within his control andotherwise reasonable in the circumstances to ensure that the statutorily prescribed health and safety measures and procedures werecarried out on the project and that every worker on the project works in accordance with the prescribed measures and procedures.” Employee misconduct does not go to the actus reus of the offence. Regina v. Dofasco Inc., (2007) 2007 ONCA 769 , 230C.C.C. (3d) 280.

Once the Crown has proven beyond a reasonable doubt the actus reus of the offence, the defendant may avoid a conviction by provingon the balance of probabilities that they reasonably believed in a mistaken set of facts which, if true, would render the act or omissioninnocent or if they took all reasonable steps or precautions to avoid the particular event. In regard to mistake of fact, it must besubjectively genuine and an objectively reasonable belief in the existence of an erroneous state of fact which, if true, would render the actor omission innocent. Regina v. Bradsil 1967 Ltd., [1994] O.J.

No. 837; Regina v. Cancoil Thermal Corp,

(1998) C.O.H.S.C. p.169;Regina v. London Excavations and Trucking, (ON CA), [1998] O.J. No. 6437. In regard to the second branch of the defence of due diligence, there is also the statutory defence contained in Section 66(3) of theOccupational Health and Safety Act. In considering the standard of care in exercising due diligence, it should not be characterized as being unrealistic, superhuman or beyondthat which is reasonable.

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