Ontario Ministry of Labour — v. —, 2012 ONCJ 295

[‘COURT FILE No.: City of Guelph in the Central West Region 101392 DATE: 2012-05-07 Citation: Ontario (Ministry of Labour) v. Linamar Holdings Inc ., 2012 ONCJ 295 ONTARIO COURT OF JUSTICE BETWEEN: Ontario Ministry of Labour — AND — Linamar Holdings Inc. c.o.b as as Transgear Manufacturing Before Justice of the Peace James Ziegler Heard on April 19 th & 20 th 2011 and October 6 th & 7 th , 2011 Reasons for Judgment released on May 7 th , 2012 J. Malabar……………………………………………………………………............... for the prosecution; R.

Little........................ for the defendant Linamar Holdings Inc. c.o.b. as Transgear Manufacturing JUSTICE OF THE PEACE ZIEGLER: [ 1 ] The Defendant Linamar Holdings Inc. c.o.b. as Transgear Manufacturing [hereinafter referred to as ‘Transgear’] has been charged by the Ontario Ministry of Labour [hereinafter referred to as ‘the Ministry’] with three counts under the Occupational Health and Safety Act R.S.O. 1990, c. O.1 , as amended. Namely, that Transgear, 287 Speedville Avenue West, Guelph, Ontario N1H 1C5 on or about the 20 th day of May 2009 did commit the offence(

s) of: Count 1: failing as an employer, to ensure the measures and procedures prescribed by s. 41 of Ontario Regulation 851 were carried out in a workplace located at 400 Massey Road, Guelph, Ontario contrary to section 25(1)(

c) of the Occupational Health and Safety Act R.S.O. 1990, c. O.1 , as amended; Count 2: failing as an employer to provide information, instruction and supervision to a worker to protect the health or safety of the worker at a workplace located at 400 Massey Road, Guelph, Ontario contrary to section 25(2) (

a) of the Occupational Health and Safety Act R.S.O. 1990, c. O.1 , as amended; Particulars of count 2: The defendant failed to provide information, instruction and supervision to a worker on a safe procedure for trouble shooting a leak in the enclosed area of the KVA 003; and/or The defendant failed to provide information with regard to the presence of electrically charged live exposed parts in the enclosed area of KVA 003.

Count 3: failing as an employer to acquaint a worker with any hazard in the work and in the handling, storage, use, disposal and transport of any article, device, equipment or a biological, chemical or physical agent at a workplace located at 400 Massey Road, Guelph, Ontario contrary to section 25(2) (

d) of the Occupational Health and Safety Act R.S.O. 1990, c. O.1 , as amended; Particulars of Count 2: The defendant failed to acquaint a worker, Amelio Aramini, with the hazard of electrically charged live exposed parts in the enclosed area of KVA 003. [ 2 ] The defendant was arraigned on April 19 th , 2011 and a not guilty plea was entered on each of the three counts.

The trial proceeded on that date and again on April 20 th , and October 6 th and then to October 7 th , 2011 for submissions and to today’s date for judgment. [ 3 ] The following witnesses were heard for the prosecution: (a)Jules ARNTZ-GRAY: Occupational Health and Safety Inspector in the Industrial Program for the Ministry of Labour at the time of this incident;

(

b) Amelio ARAMINI: affected worker employed as a licensed millwright by the defendant Transgear for 10 years in maintenance. [ 4 ] The following witnesses were heard for the defence: (a)Bill STARK: the principal of a safety consultant company called Stark and Associates; (

b) James HAGAN: the maintenance supervisor at Transgear at the time of the incident; (

c) Darryl Goodwin: the operations manager at Transgear at the time of the incident and current. [ 5 ] A total of 14 exhibits were entered, identified as follows:

(1) Corporate Profile Report

(2) Transgear Defendant’s Book of Photographs

(3) Incident Investigation and Corrective Action Form

(4) Incident Report Form dated May 26, 2009

(5) Premise/Project Form dated June 3 rd , 2009

(6) Photograph ( already entered in Exhibit one Tab 14(a)

(7) Photograph ( already entered in Exhibit one Tab 14(b)

(8) Photograph ( already entered in Exhibit one Tab 14(c)

(9) Premise Project Form, dated June 10 th , 2009

(10) Electrical Safety Program of Transgear

(11) Injured Worker Information/Employee Records

(12) Photograph of Injured Worker Amelio Aramini

(13) Training Records of Amelio Aramini

(14) Book of Work Orders on Induction Heating Equipment. APPLICABLE REGULATIONS AND SECTIONS [ 6 ] In the Occupational Health and Safety Act and Regulations for Industrial Establishments R.S.O. 1990

Chapter O.1, as amended, and R.R.O. 1990, Reg. 851 as amended,

section 41 of Reg. 851 provides: “The entrance to a room or similar enclosure containing exposed live electrical parts shall have a conspicuous sign, warning of the danger, and forbidding entry by unauthorized persons. R.R.O. 1990, Reg.851, s.41 .” [ 7 ] In

Part 111 titled Duties of Employers and Other Persons of the same Occupational Health and Safety Act, Section 25(1) (

c) provides: “

(1) An employer shall ensure that, (

c) the measures and procedures prescribed are carried out in the workplace;” [ 8 ] Section 25(2)(

a) and (

d) in the same Part of the Act provide: “(2) without limiting the strict duty imposed by subsection (1), an employer shall, (

a) provide information, instruction and supervision to a worker to protect the health or safety of the worker; (

d) acquaint a worker or a person in authority over a worker with any hazard in the work and in the handling, storage, use, disposal and

transport of any article, device, equipment or a biological, chemical or physical agent;” CASES CITED [9] The Crown provided the Court with a Book of Authorities citing 18 cases under 18 Tabs, as follows: Tab 1 R. v. Sault Ste. Marie (City), (SCC), [1978] 2 S.C.R. 1299 Tab 2 R. v. The Corporation of the City of Hamilton, (ON CA), [2002] O.J. No. 283 Tab 3 R. v. Brampton Brick Ltd., [2004] O.J. No. 3025 Tab 4 R. v. Wyssen, (ON CA), [1992] O.J. No. 1917 Tab 5 R. v. Kurtzman, (ON CA), [1991] O.J. No. 1285 Tab 6 R. v. Seeley & Arnill Aggregates Ltd., [1998] O.J. No. 443 Tab 7 R. v. Ontario (Ministry of Labour) v.

Dofasco Inc., (2007) 2007 ONCA 769 , 87 O. R. (3d) 161 Tab 8 R. v. Gonder, [1981] Y. J. No.16 Tab 9 R. v. London Excavators & Trucking Ltd., (ON CA), [1998] O.J. No. 6437 Tab 10 R. v. Inco, [2001] O.J. no. 4938 Tab 11 R. v. Stelco Inc., [1989] O.J. No. 3122 Tab 12 Ontario (Ministry of Labour) v. Cementation Canada Inc., 2008 ONCJ 135 Tab 13 R. v. St Mary’s Cement Corporation (c.o.b. Pre-Con Tunnels, [1990] O.J. No. 942 Tab 14 R. v. National Wrecking Co., [2005] O. J. No. 3538 Tab 15 R. v. Timminco Ltd., (ON CA), [2001] O.J. No. 1443 Tab 16 R. v. Lee Valley Tools Ltd., [2006] O. J. No. 5611 Tab 17 R. v.

Lee Valley Tools Ltd. (unreported, Dec. 12, 2007, O.C.J., Appeal, Pockele J.P.) Tab 18 R. v. Lee Valley Tools. 2009 ONCA 387 , [2009] O. J. No. 1882 [10] The Defence provided the Court with a Book of Authorities citing 9 cases under 9 tabs as follows: Tab 1 R. v. Timminco (ON CA), [2001] O.J. No. 1443 Tab 2 R. v. Domtar Inc. [1993] O.J. No. 3415 Tab 3 R. v. Camco Inc., Provincial Court Judge Meen, May 26, 1983, Toronto Tab 4 R. v. King Paving & Materials Co. [2007] O.J. No. 5095 Tab 5 Furlong v. Cambridge (City), 2009 CanL11 72077 (ON S.C.) Tab 6 Loblaw Cos. v.

United Food and Commercial Workers Union [2003] O.O.H.S.A.D. No. 106 Tab 7 R. v. Kellogg Canada Ltd., 1994 Ontario Court (Provincial Division) Lon don, Ont. Tab 8 R. v. United Ceramics Limited (1979) (ON CJ), 52 C.C.C. (2d) 19 Tab 9 R. v. Stelco Inc. {2004] O.J. No. 6187 [11] In addition the following cases were cited in oral submissions with copies of the cases provided outside of the Books ofAuthority: 1. R. v. Wholesale Travel Group Inc. (SCC), [1991] 3 S.C.R. 154 2. R. v. Dana Canada Corp. [2008] O.J. No. 4487 3. Ontario (Ministry of Labour) v. C.S. Bachly Builders Ltd., [2007] O. J. No. 1050

OVERVIEW [ 12 ] The charges against the Defendant arise from an accident that occurred on May 20 th , 2009 at a manufacturing facility owned by Linamar Holdings Inc. and carrying on business as Transgear Manufacturing where the injured worker, Amelio Aramini had worked for approximately eleven [11] years and was employed as a certified millwright doing maintenance on machinery on the premises located at 400 Massey Road, Guelph, Ontario. [ 13 ] Transgear had ongoing training in place for its employees in general and for its millwrights in particular, the machine had signage warning of an electrical hazard and lockout procedures required, procedures were in place for locking out machines to be repaired, the injured worker was trained in these procedures, apparently an exception to locking out a machine was trouble shooting, the Prosecution alleges the worker was electrocuted while troubleshooting the machine known as KVA 003 resulting in his inability to work since or shortly after the accident. [ 14 ] The machine known as the KVA 003 is an “Induction Hardener”.

There are ten of them at the Transgear Plant on Massey Road in Guelph. It operates with a robot placing a

part into a compartment onto a coil, a slide moves forward from the back of the machine, placing another coil on top of the part. Electricity flows through both coils heating the part which is then quenched with water which has the affect of strengthening the part through a chemical reaction.

The slide moving forward from the back of the machine is known as a “glorified slider”. [ 15 ] The Defendant advises there are 14 electrical hazard signs on this machine and 7 signs instructing an employee to lockout the equipment before working on it or moving inside, the warnings are located at operating pads the employee needs to, or should or would go to first. At the back of the equipment is a fence guarding or a cage. There is neither lockout warning nor electrical hazard warning at the back of the machine where this fence guarding is located.

The accident occurred behind the fence guarding which was bolted in place, after the injured worked removed the fence guarding and entered the space behind the machine to troubleshoot. [ 16 ] Troubleshooting, or running the machine to observe a problem, was apparently necessary to locate the source of a water leak in or from a pump. It is alleged by the defendant that the injured worker entered the equipment without locking it and asked a worker to cycle the machine so the injured worker could locate the leak. Defendants Position [ 17 ] It is the Defendants position that this is a lockout case.

The injured worker was aware of the hazards but chose not to lockout the machine notwithstanding his training and the warnings. The defendant states that a skilled tradesperson would have locked out the equipment before working on it and had he done so he would have been entirely safe. And, it is the Defendants position that the space behind the fence guarding is not a “room” with the meaning of Regulation 851

section 41 and therefore did not require a sign warning of the danger of live electrical parts. Crown’s Position [ 18 ] It is the Crown’s position that there should have been a sign at the back of the machine, the caged area, and that it is the entrance of a room within the meaning of Reg. 851 s. 41 . The Crown says this is not a lockout case. There is a distinction when working on equipment and when not working on equipment for lockout purposes. The injured worker needed to locate the leak before he could fix it and that is the reason he entered the cage.

So the worker was not working on the equipment he was trying to locate the problem. The Crown states the worker was aware of the warnings and the high voltage parts but was not aware that this area contained exposed electrical parts because none of the warnings were located in this area. ADMISSIONS [ 19 ] The defendant and Crown admit that the back of the KVA 003 looked like the picture shown in Tab #1 of the Defendant’s Book of Photographs, exhibit number 2.

All of the pictures in Exhibit 2 are accepted by both parties as representative of the KVA 003 with explanations where necessary to identify features installed after the incident on May 20 th , 2009. ISSUES [ 20 ] Some of the issues this Court must determine based on the evidence proffered are as follows: Is the caged area in the back of the KVA 003 a room within the meaning of Reg. 851, s.41 ? Is the signage in or about the machine adequate or misleading as to the presence of an electrical hazard? Is the signage in respect to lockout adequate or misleading in respect to repairing this machine?

Were lockout procedures required before the worker tried to identify the source of the leak? Were lockout procedures adequately identified in respect to this particular machine? Was the training by the Defendant adequate in respect to lockout procedures and troubleshooting? THE EVIDENCE [ 21 ]

SUMMARY OF THE EVIDENCE OF JULES ARNTZ-GRAY Jules Arntz-Gray was hired by the Ministry of Labour [MoL] in 2005 as an Ontario Health and Safety Inspector in the industrial section. He stopped being an active inspector when promoted to a Regional Coordinator in October 2009 although he is still qualified as an Inspector. He visited workplaces to ensure compliance and promote internal responsibility in workplaces. He was the Inspector assigned to the Transgear event and took notes at the time and shortly after. He was first notified of the event on June 1 st 2009

and it was identified as a not critical incident with 20,000 volts at the time and worker had wounds that were not healing. [ 22 ] The incident took place May 20 th , the Ministry of Labour was notified June 1 st . Linamar is involved in manufacturing automobile parts using heat treating, making it a factory and an industrial establishment. The Inspector went to the scene on June 1 st ; the scene had not been secured because it was not a critical incident.

He spoke with Mary Shannon the employee relations manager, Darren Goodwin the plant manager, the injured worker and Richard Justin the health and safety manager. He received a copy of the employer’s Incident Investigation and Corrective Action Form, entered as Exhibit #3 and what employer changes had been made at the worksite.

The Defendant states that the changes made after the event are not relevant to the charges before the Court; this Court is to determine whether the regulations were met at the time of the accident. [ 23 ] The Crown points out that the document, Exhibit #3 was created on May 20 th and the purpose of it is to discuss what happened on the day, it comes under the exception of the OH&S Act s. 67(1) (

b) as certified by the Inspector and provided by the employer. The Crown argued the Dana case applied [cited par. 11 above] and the Court ruled Exhibit #3 is admissible on the grounds outlined in the Dana case, such that its contents can be used as proof of the truth of the facts asserted without calling the witnesses who produced it. The defendant can call evidence to refute it. The Dana case cautioned that remedial actions taken by employer will not go against the actus reus but can be used regarding due diligence.

This Court’s ruling and reasoning are outlined in the Transcript of these proceedings from April 19 th 2011 at pages 80 to 90 inclusive. [ 24 ] Exhibit # 3 was provided to the Inspector to give a background to the incident on May 20 th 2009 as it was now June 1 st when he was advised of and attended the Defendant premises. On June 10 th 2009 the Inspector had requested a variety of documents and received the Defendant’s Incident Report Form, dated May 20 th 2009 and entered as Exhibit #4.

The Inspector was at the site on June 1 st , 3 rd , 10 th and 22 nd in 2009.The Inspector identified KVA 003 as the machine where the incident occurred and his knowledge of how it functions. He was able to identify the location where the employee was injured with an x on the schematic diagram. The machine had been changed with a mechanism to cut power when the door [gated fence opening] was opened, which did not exist at time of the event.

Exhibit #5 is identified as the Premise/Project Form the Inspector filled out which identifies the event as a complaint [and not a proactive report] and if orders were issued they would be in this document. [ 25 ] The Inspector identifies the point where the injured workers head would have come into contact with the brass elbows which had live current running through them in Tab 3 of Exhibit #2 and again in reference to Exhibit #7 picture. Exhibits #6 & #7 show the changes made to the back of KVA 003 after the incident.

The Inspector took the photos illustrated in Exhibit #2 at Tabs 4, 6B, 7, 8, 8 A&B, 9, 11 A&B, 14 A, B, C & D as well as the photos in Exhibits #7 & #8. [ 26 ] The Inspector outlined the procedures and purpose for a lockout. He said when dealing with hazardous energy, electrical, kinetic, chemical, you must isolate verify and insure. Isolate by disconnect, verify by ensuring it is disconnected, insure by making sure no one else can turn it on [through a lock mechanism].

For electric you put a tag on the logout, who it is and why it is, to ensure the safety of someone in the area and to prevent someone from inadvertently turning it on. It is required whenever a hazard is posed either from energy itself or action by energy such as making a part move.

He said that according to s. 42.1 in the Industrial Regs electricians can ‘work’ on live only when testing or trouble shooting not when doing repairing or maintenance. [ 27 ] The Inspector said that sections 75 and 76 of the Industrial Regs deal with lockout and 75 says: “A part of a machine, transmission machinery, device or thing shall be cleaned, oiled, adjusted, repaired or have maintenance work performed on it only when, (

a) motion that may endanger a worker has stopped; and (

b) any part that has been stopped and that may subsequently move and endanger a worker has been blocked to prevent its movement.” He said 75 is very focussed on movement; some kind of motion causing [that may cause] injury to a worker. Seventy–six [76] is slightly different. It talks about: “Where the starting of a machine, transmission machinery, device or thing may endanger the safety of a worker, (

a) control switches or other control mechanisms shall be locked out; and (

b) other effective precautions necessary to prevent starting shall be taken.” The Inspector testified: “there was no sign specific to troubleshooting per se. There were a number of signs on cabinet doors that opened up to electrical components saying: “Danger. High Voltage” and other various warning symbols. But the word troubleshooting itself is not mentioned on those signs.” [ 28 ] The Inspector went on to talk about electrical and mechanical troubleshooting. For electrical, troubleshooting is when a trained electrician needs to determine what the fault is in electrical components.

If there is no power to those components they are unable to do this. So with proper safety procedures [rubber mats, gloves, other protective equipment] they have a method of touching often using testing equipment where they don’t physically with their hands touch the equipment but they test to see if there is current running through parts.

Then once they determine the area that is broken they would do a full power down and a full lockout procedure and repair the area that had been indicated as being the problem in the troubleshooting. [ 29 ] For mechanical troubleshooting, the Inspector said similar to electrical troubleshooting, and not talking about a trained electrician but rather someone who is competent to do the work, has the machine powered up in order to observe what the failure or purported failure is.

The idea is using safe procedures you have the machinery on so that you can determine where the fault lies. [ 30 ] At the KVA003 the inspector did not observe any procedural signs with regards to troubleshooting. He just observed signs with regards to lockout and warning of hazards of electrical danger on various electrical cabinets. [ 31 ] The Inspector requested documents from the Employer respecting injured worker information including supervisor information, witness information, any documents relating to the employer’s and/or joint health and safety committee’s

injury/accident/incident investigations, photographs not already supplied, first aid reports, health and safety policy and procedures in respect to this incident in existence at the time of the incident, a copy of all procedures for the work or involved machine or device in existence at the time, a copy of the material supplied by the manufacturer for the involved machine or device, proof of training of the injured worker, supervisor and witnesses not already supplied, copies of any health and safety discipline for any the involved, a copy of the pre-start health and safety review for the involved machine and scale drawings. [ 32 ] In respect to the copies of health and safety policy and procedures relevant to this incident in existence at the time of the incident the Inspector did not receive anything related to troubleshooting.

Nor did he receive any documents relating to training on troubleshooting. [ 33 ] It was indicated to the Inspector whatever was not provided was not in existence at the time of the incident. The Inspector wrote in his Field visit report: “The employer stated that all documents provided were in existence at the time to the incident on May 20 th , 2009, where so requested by this inspector. Documents not provided do not exist the employer stated.

The employer stated they are not aware of the location of the supervisor at the time of the incident.” [ 34 ] The Inspector concluded his examination in chief by stating that: “… it was clear to me once I sat and reviewed the statements from the workers and the evidence gathered that …it was unclear to those involved what to do when troubleshooting with regards to electrical hazards.

It was a clear answer that electrical work is to be done by electricians but, when it came to mechanical hazards and mechanical troubleshooting, it was unclear when to do lockout and when not to do lockout and what the procedure was with regards to troubleshooting.” Cross Examination of the Inspector [ 35 ] On cross examination the Inspector acknowledged that Linamar was not required to notify the Ministry of this accident, and they received information from other sources about an accident.

He admitted he did not specifically ask the employer for documents about troubleshooting, there were adequate guards at the back of the KVA prior to the incident and acknowledged that the Ministry’s position is they required a sign at the back of the KVA, and though that is not the employer’s position, they since added three signs at the back. The Inspector did not talk directly to Jim Hagan the injured worker’s supervisor. [ 36 ] The Inspector acknowledged that within the guarded area of this machine there were electrical and mechanical hazards.

There were no signs about troubleshooting but there is no sign saying it is permissible to remove guarding when troubleshooting without locking out. And there is a sign in Exhibit eight “B” that instructed “Lockout if you are removing or bypassing machine guards”.

The Inspector acknowledged the injured worker initially locked out but then took his locks off entered the guarded area of the machine positioned himself beside the moving hazard beside an electrical hazard [the transformer]. [ 37 ] The Inspector admitted the Act [Sections 75 & 76 of Regulation 851] requires lockout whenever exposed to a hazard and there is no exclusion for troubleshooting. And on the equipment the Inspector saw and the procedures he saw from Linamar there was no exception to that.

And the Inspector acknowledged that although the worker was aware of the hazard posed by the slide and the hazard of the transformer, he squeezed himself into that area shown towards the left of the photograph [Exhibit 2. Tab 3] an area not much wider than a person’s body and instructed the operator to cycle the machine. [ 38 ]

SUMMARY OF THE EVIDENCE OF AMELIO ARAMINI The second Crown witness was Amelio Aramini [herein after referred to as Aramini], the injured worker and a 11 year employee of the Defendant Transgear at the time of the incident. He worked in maintenance and through weekend schooling at Conestoga College became a licensed millwright certified by the Province since March 2008 with over 8000 hours required in the trade for certification.

He stopped working after the incident in May 2009 although he is still an employee. [ 39 ] Aramini was paid for and worked as a millwright or maintenance mechanic for Transgear at its plant at 400 Massey Road in Guelph. In that capacity he does fabricating, repairs to machine – CNC machines, and diagnosing problems with machines as well. He is not an electrician and does not work with electricians. [ 40 ] Aramini is the injured worker involved in the workplace accident, the subject of these proceedings, on May 20 th 2009 at 400 Massey Road.

He said he was diagnosing a leak on one of the machines which is a KVA, a KVA on 003 line. He had earlier been assigned to a different machine which had a programming issue and when he was no longer needed at it he went to his supervisor Jim Hagan and told him he would now look at the leak mentioned to him earlier by the supervisor on the subject machine. He testified that he had worked on this machine in respect to leaks before, it was a common thing. [ 41 ] “At times there would be pump leaks and then there were actual hose leaks.

This particular time it was coming off the hoses at some point.” [p. 32 transcript April 20, 2011]. The last time he had fixed a leak at this machine would have been a week before. But it was not a similar situation to the leak this time. “The first leak was an actual pump seal that was gone. This incident here was actually coming from the unit; the hoses that heat the particular machine.” [p. 32 transcript of April 20 th 2011]. The leak repaired earlier on the pump, was in the same fenced area as where the incident occurred. [ 42 ] Aramini went to the machine and the set up man, Jovan was inside the robot cell.

He mentioned to Jovan that he needed to take a peek at this leak and Aramini put his lock on the robot cage to keep the door open. He asked Jovan to turn on pump one and did not see the leak, so he asked him to turn on pump two. He “Still wasn’t able to detect the leak. So I went to the back of the machine and from the outside of the cage with my flashlight as he was continuing to run the unit back and forth, I was able to see the leak.”[p. 37, transcript April 20, 2011]. He was standing outside the cage at the back of the machine where the incident later occurred, Ex. # 2 Tab 7 photo.

And he was able to see the water running down the tank. [ 43 ] “At this point I asked Jovan to put the robot in auto cycle. We removed our locks from the cage…So he could be my

spotter at the back” [p. 38, transcript April 20, 2011]. Leaving the machine running because that was the only way to find where the leak was coming from. Transgear drilled into our heads we required a spotter. “once he was my spotter I entered the cage with my flashlight. I went in on the left side of the slide, the glorified slide, and I was looking up and down. Still wasn’t really too sure where it was coming from.

And before we knew it-before I knew it I could hear like a crackling, like a zipit (sic) and it threw me back and all I could-all I remembered was my body locking up and fire coming from the transformer, something like that. And from that point there I don’t remember how I got out of the cage.” [p. 39, transcript April 20, 2011]. [ 44 ] Aramini was asked if he required any tools to enter into the cage and he said no.

He guessed from the midnight shift there and the leak happened, the machine always had a vacuum cleaner on hand and whoever was working on that machine cleaning the water coming out hadn’t bolted the gate. [ 45 ] Aramini said he had not locked the machine prior to entering past the gate because he still had not found where the leak was coming from. He felt it was not an unusual circumstance, it is like bringing your car to an automotive mechanic and saying there is a noise in my engine but you can’t start the engine. It’s impossible to find-diagnose the problem.

He said he was troubleshooting. [ 46 ] Aramini said he was not physically doing any repairs to the machine at the time of the incident. “My intentions was just to troubleshoot it and if I-once I realized the problem I would’ve locked the machine out, have had Jovan write up a work order.”[p. 41. Transcript April 20, 2011]. [ 47 ] Aramini said he had not entered the cage while the machine was running before.

He understood the lockout policy was “Once the troubleshooting has been resolved and you knew what the problem was, all energized parts must be de-energized.” [p. 41-42, transcript April 20, 2011]. [ 48 ] Aramini said you would not lockout prior to troubleshooting and troubleshooting was a daily part of his job. [ 49 ] Jovan was with Aramini and Jovan had not told him not to enter past the cage or to lockout before entering. Aramini said he was not aware of the electrical hazards before entering the cage and if he had been aware of the electrical hazards he would not have entered the cage.

Exhibits #8 and #7 are pictures of the cage and where he entered it to the left beside the glorified slider. The two bus bars now, since the incident covered with red material, were where he was electrocuted. [ 50 ] Aramini said he thought those two bus bars were just water lines because the machine is cooled by distilled water. No one had told him that those lines contained electrical energy.

He said he was never given any instructions on how to troubleshoot when he had entered past the guard on this machine and there were no signs posted on the cage area that warned of an electrical hazard within that area. [ 51 ] There were signs on the electrical housing [a cabinet door] to the left of the cage which warn of electrical hazard and he thought they meant a high voltage system within that area. He said “everyone is authorized there”[p.45, transcript April 20, 2011] to go past the cage or gate but where the electrical side is there are only certain people that are only qualified.

There is no other way to get into this caged area. To the left is electrical and there is no entrance to the right [p 57-58 transcript April 20, 2011]. [ 52 ] Where the signs say “Danger. High Voltage” only electricians and millwrights that our supervisor has trust that they have knowledge to go in there can go in there, and he understood absolutely that he should not go in there. He would not enter those areas. [ 53 ] Aramini said the electricity entered through his left hand skull and exited his back left shoulder. He had burns to his left- hand side and the burns indicated where it entered and exited.

The hole in his shoulder did not heal until September. He did not remember getting out of the gate but after getting out remembers: “I threw my glasses off because the frame was hot and then I picked them up again because I knew I was going to get in trouble if I had-if I was seen with my glasses off. And then Jovan saying:” I hit the emergency stop,” and, “I’ve seen this before.” I don’t know what he meant by that.

I didn’t know what he meant by that.”[p.47, transcript April 20, 2011]. [ 54 ] Next Aramini went to his supervisor who was in maintenance at the time and mentioned that he was electrocuted, removed his shirt and once he seen it that he rushed me to or sent me to the nurse’s room. Management was called; she assessed me and mentioned that I should go to the company doctor, whom he saw about one half hour after the incident.

The company doctor checked his burns, covered his burns and sent him back to work. [ 55 ] When he returned to work, they had a meeting inside the conference room with management and a health and safety representative to go over what happened where Mary Shannon, Darryl Goodwin, Harbi Dhindsa and Peter Baggio were present. He went to the machine with Darryl to explain what he did and then asked Darryl if he could go home to take a shower “ ‘cause I just smelled burned skin”. After which he drove home returning the next day to work. He worked the next day but they kept calling him to meetings.

He tried to see his family doctor that day but they were closed. He called his family doctor and receptionist spoke to the doctor and they told him to go to emergency at General Hospital. Exhibit #12 photograph of injuries. [ 56 ] Aramini’s injuries, the burns, were treated with the removal of dead skin, ointments, and repacking or repatching with bandages. His shoulder never closed until September 2011. He has cognitive memory issues, and speech issues. He has to write everything down for his day to day appointments and is having difficulty remembering new information.

He does not have difficulty remembering past events but it is difficult to retain new information. He has difficulty finding words, the word is there but he can’t get it out, and his concentration requires him to be actually looking at the person speaking to him. They don’t anticipate him to recover from these cognitive issues. [ 57 ] CROSS EXAMINATION OF ARAMINI : Defence counsel had Aramini re-affirm the duties of a millwright including install, repair and maintain equipment, which he did for 11 years at Transgear.

He then introduced Aramini’s training record as Exhibit #13. [ 58 ] Aramini received lockout training every year, the last being April 30 th 2009 about one month before the incident. In

reviewing Tab 2 of Ex#13 where Aramini received a certificate for Lockout Awareness February 6, 2004 this Court notes test question #15 which says: When testing equipment and lockout is not possible, it is not necessary to lockout as long as a lookout is available to help ensure the area is clear. Answered true, marked correct. Tab 3 Ex. #13 Certificate Feb. 4/05 for Lockout, same test, same answer to question #15. Tab 5 Ex. #13 Certificate Feb. 15/06 for Lockout, same test, same answer to question #15 Tab 6 Ex. #13 Certificate Apr. 20/07 for Lockout, same test, same answer to question #15.

Tab 8 Ex. #13 Certificate Apr. 29/08 for Lockout, a modified test, questions # 2, 5, 7, 8 10. 11, 12, 13, 14, 17, & 19 are the same questions with the same true or false answers. Question number 1 is different and states with an answer of True that: “Lockout/Tag out procedures should include drawings of each system outlining location and identity of switches, power sources, controls and other devices required to obtain a zero energy state”. This Court will consider later whether in fact this new procedure was done in respect to the lockout of KVA 003 . Q#3 now deals with small power tools.

Q#4 is substantially the same with the added words “or repairs” at the end. Q#6 is different dealing with the possibility of an employee installing more than one lock to lock out. Q# 9 changes the number of employees who can put a lock on a lockout clip machine from 6 to 4. Q#15 is the same with the added phrase of “ and all partial lockout procedures are followed ”.

Q#16 is different and the answer is false to “It is acceptable to give your key to your supervisor for safe keeping.” Q#18 is modified by referring to the mechanic instead of operator and adding the words “or other ways listed on the procedures” and the answer is True, it now reads “The mechanic must verify the isolation by clearing the area and trying the start button or other ways listed on the procedures”.

Q#20 is added it says “If there is already a lock on the machine you must still place your own lock if you are going to work on the machine.” Tab 10 Ex. #13 Certificate Apr. 14/09 for Lockout, same test as Tab #8, same answer to question #15 as modified in Tab 8. Tab 11 Ex. #13 Certificate Apr. 20/09 Linamar Hazardous Energy control Program discusses Lockout and Equipment Specific Procedures among other things. This court will revisit Tab #11 in respect to its affect or application on KVA 003 later.

Tab 12 Ex. #13 Certificate Apr. 14/09 for Lockout, same test as Tab #8, same answer to question #15 as modified in Tab 8. [ 59 ] In cross-examination Aramini testified that Jovan was his spotter. That they looked around the machine and there was no emergency stop to hit at the back of the machine.

In response to questions Q: “And [your] training though told you that if you’re using a spotter, the spotter has to be able to hit the emergency Stop?” Answered A: “Or has knowledge” Q: “…To stop the machine?” A: “Yes; has knowledge of the machine.” [p. 76 transcript 04/20/11] Q: “…You agree there was no place that Jovan could stand, watch you and stop the machine?” A:”Correct”. Q: “Okay. But you still went into the equipment?” A: “Correct.” Q:…"you knew there were lots of labels on that equipment, on the KVA, warning of electrical hazard?” A: “On the outside of the cage, yes”.

Q: …“On both sides?” A: “Yes.” Q: “And all around. You knew that, right?” A: “On the cages I entered there was nothing, no.” [p.77 transcript 04/20/11]. [ 60 ] Aramini further testified in cross he knew the fencing in the back of the machine was a guard and that the signs said to lockout if you remove or bypass a safety device or guard. He said he was aware of the danger of the transformer but there was no way you could even touch the transformer from where he was.

He was cautious about the transformer because high voltage like that can arc. [ 61 ] Aramini said he wanted to be in there [the gap] while the machine was going through a cycle and aware the moveable slide would move forward when Jovan was in position as his spotter.

Q: “ …Then for the power to come from the power sources in the side and go into the-go through the transformer and into where the part would be?” A: “Yes.” Q: “…And then after that the water pump would quench it and you hoped to see the leak at that point?” A: “Correct.” Q: “…So you wanted the entire process to occur while you were standing in the gap looking for the leak?” A: “I wasn’t standing. I was kneeling.” [pp. 85-86 transcript 04/20/11]. [ 62 ] Aramini testified in cross that he did not perform a partial lockout on the KVA that day while he was troubleshooting.

Q: “ …Although the training that we’ve just talked about says you are to perform a partial lockout and have a spotter when you’re doing troubleshooting.” A: “Yes. By the signs, that’s correct.” Q: “Okay.” A: “By the signs that’s correct.

By the training, that’s incorrect.” [P.86 transcript 04/20/11]. [ 63 ] Finally in cross, in response to Q: “And you didn’t have Jovan acting as a real spotter did you?” A: “I believe I was, yes.” Q: “Well, you said that to be a spotter Jovan had to be able to stop the equipment?” A: “Yes.” Q: “But he wasn’t –if he was standing behind the machine with you he couldn’t stop the equipment, could he?” A: “Have-had knowledge of the equipment.” [pp. 87-88 transcript 04/20/11]. [ 64 ] In Re-Examination Aramini said he did not know what partial lockout was and had never been given instructions on how to partially lock-out a machine.

The lockout placard attached to the machine did not tell you how to partially lockout the machine. In reference to the training records [tests] on troubleshooting, he was asked if it is not necessary to lockout as long as you have a spotter and Aramini said yes. [p. 91 transcript 04/20/11]. Aramini said he had a spotter, the spotter was Jovan. And finally, Q: “When troubleshooting, what safety procedures were required according to this testing?” A: “To have a spotter.” [p. 92 transcript 04/20/11]. [ 65 ]

SUMMARY OF THE EVIDENCE OF BILL STARK Mr. Bill Stark was an Inspector for the Ministry of Labour for 15 years in Guelph and Kitchener area. He subsequently has worked 12 years in the field, the last five years as head of his own company, as a safety consultant and trainer, particular in respect to machine guarding to make the machine safe in accordance with the Regulations and using the Code as guidance. [ 66 ] He is familiar with the KVA 003 induction heater involved in this accident and his opinion is that the

section 41 signage requirement does not apply to the back of this machine; it applies to power distribution rooms or motor contactor in a room. He was

qualified as an expert witness to give his opinion in respect to machine guarding and he said he never in his experience made nor saw a

section 41 order in respect to this type of machine guarding. He said 85 % of his time in the last seven years has been spent on machine guarding and machine guarding only. The defence position is that the signage is part of the guarding on a machine. [ 67 ] Mr. Stark says the screening that runs along the back of the equipment is a physical barrier guard capable of being dismantled to provide access for maintenance and other purposes. At page 118 of the transcript 04/20/11 he says: “You have to maintain this equipment. It moves. It works. It wears out.

You can have the physical barrier guarding that meets the CSA criteria in height, size, distance; all the good things that this fence guarding. You can have it bolted into place but, somehow, you’ve got to take it out of place to maintain that equipment; to set it up, top repair it, to fix leaks. You’ve got to get at it whether you take the post off or rip it up or do something with it, you’ve got to get it out of the way and it’s not easy to handle.” [ 68 ] Stark said the fence on this machine is hinged on one side but bolted on the other into place.

The mesh meets the criteria in the CSA allowed a certain sized opening based on the distance from the hazard. That fence meets it. You can’t stick your fingers in the hole and get it caught on the other side by the hazard [p.119 transcript 04/20/11]. [ 69 ] In Cross-Examination , Stark acknowledged he has been involved in training related to lockout, has trained workers in how to lockout and when it is required and that the training is usually followed by a true or false test. He acknowledged question 15 in Tab 10 of Exhibit 13 [last test taken by Aramini before the incident] talking about troubleshooting.

He acknowledges that except where the legislation requires a spotter for electrical troubleshooting [section 42.1(3)] it does not apply to mechanical troubleshooting. Q: “ … So that a spotter would not be required if you are testing or troubleshooting according to the legislation?” A: “Was he testing? I don’t know.” Q: “That’s fair. I’m just saying, according to the legislation, it wouldn’t be required if that is what he was doing.” A: “That’s correct.” [p. 123 transcript 04/20/11]. [ 70 ] Stark states that as an inspector there is a distinct differential between troubleshooting and work.

In respect to the company test he acknowledges when full lockout is not possible you have to have a spotter available. In respect to the placard on the machine [Exhibit 2, tab 11 “B”] he says: “ You can lockout the machine with that placard”. Q: “Okay. But does it tell you how to partially lock it out?” A: “No.” He says it would be based on knowledge and experience . [p. 126 transcript 04/20/11]. At page 127 transcript 04/20/11 he says; “You cannot partially lockout the machine strictly by that placard”.

Q: “You would have to do so based on your knowledge and experience.” A: “Correct.” Q: “ And if you didn’t have that knowledge and experience you wouldn’t know how to partially lockout a machine.” A: “You’re right”. [ 71 ] In Re-Examination , Stark says the legislation ties endangerment to lockout, so if equipment might endanger you lock it out. And he acknowledges that some companies go beyond the requirements of the Act and says most companies do.

Referring back to Question 15 in Tab 10 of Exhibit 13: Q: “ …Now in this particular case it says, question 15 Tab 10 of Exhibit 13, says that when troubleshooting, if you can do a partial lockout and have a spotter that works, right?” A: “That’s what it states.” Q: “Okay. And so if I… if I come to the KVA and I don’t know how to partially lock it out, what does the training tell me?” A: “You’re to lock it out.” Q: “So if I can’t partially lock it out, what part do I lock out?” A: “The whole thing.” [p. 129 transcript 04/20/11]. [ 72 ]

SUMMARY OF THE EVIDENCE OF JAMES HAGAN Hagan started at Transgear in March 2004 and became maintenance supervisor in charge of 19 maintenance trade workers including electrical and millwrights in January 2007, one of whom was Aramini. There are 176 pieces of main production equipment at Transgear and his group of millwrights was responsible for the maintenance and mechanical repairs of all production equipment including lays, milling machines, spline rollers and broaches, robots, and induction hardening machines. All of the equipment is different.

The KVA 003 was part of that equipment and it is an induction hardening machine. [ 73 ] Hagan had two lead hands that assisted him in supervising the workers and typically those supervisors would come to him and as well he would see the guys at various points throughout the day and assign them to different breakdowns. Probably half the time when the guys would finish a job they would come to Hagan but if he were unavailable they would go to one of the lead hands. [ 74 ] On occasion Hagan would perform maintenance work himself.

None of the millwrights were expected to be expert in all of the 176 pieces of equipment. To keep them safe they are taught to follow procedure, if they get to a cross road and don’t know how to proceed they are instructed to come to him. [ 75 ] In his term as supervisor he took disciplinary action against three people for different lockout infractions. In September 2007 one of them was Aramini, who had removed his locks from a locked out machine before the next employee at the end of Aramini’s shift had placed his locks on that piece of machinery.

Aramini should have left his lock on, gone to the shift change meeting, told the lead hand that his machine was still in unsafe condition and the lockout needed to be transferred, and the lead hand would have put a shift change lock on it. Hagan had no other occasion to discipline Aramini again, not for that, not for safety issues, not for working safely, no other occasion. [ 76 ] An apprentice millwright needs 8000 hours of equipment training to become a millwright. Aramini had his millwright’s certificate; he got his training while at Transgear.

Lockout training was a part of that training but according to Hagan in relation to the 8000 hours it is not a large part of those 8000 hours although every time you go to work on a machine you lock it out so it fits into the category. [ 77 ] Aramini would have performed all millwright duties, machine repair, and break down in his 11 years at Transgear, operating tow motors, sky jacks, a very wide range. He would be troubleshooting every day. [ 78 ] Hagan never taught lock out. There was a lockout course once every year with written multiple choice questions at the end of the course [Exhibit …].

Lockout means the machine must be turned off zero energy, no electrical, no hydraulic power, and no compressed air. It includes gravitational in some instances. [ 79 ] Whenever an employee works on equipment they must lock it out to zero energy. The training for troubleshooting was to

lock the machine out and assess the situation. “If it’s an instance where the machine needs to be powered up to find out what’s wrong then you need a spotter. You need somebody standing on that E-stop that can see you and that is properly trained in CPR…” [p. 14 transcript Oct 6/11]. [ 80 ] Where there is no E-stop, pressing an E-stop kills all the power, then an employee troubleshooting equipment would come and get Hagan who would go and assess the situation and instruct them on how to proceed safely.

Hagan estimated that would happen once a week. [ 81 ] Hagan reviews the purpose, function and layout of the KVA 003 piece of equipment, its safety features, and lockout and warning signs. He testified that Aramini had worked on induction heating equipment many times before [Exhibit 14]. The week prior to the incident Aramini repaired a leaking pump in the KVA 003. Hagan had instructed him to repair it and using a flashlight had shown Aramini where the leak was.

Later he walked past and saw Aramini had the machine locked out and had the pump apart replacing the seal. [ 82 ] On the day of the accident, Aramini had finished what he was doing and came to Hagan’s office said Robert had stopped him and told him the KVA was leaking again and could he have a look at it. “And I just –I said: Yeah, yeah. Go ahead. And he, at that point, turned around and went to work on the machine” [p. 34 transcript Oct. 06/11]. About 45 minutes later Aramini came back to his office, came through the door and stood beside him and said: I got a shock.

At which point Hagan took him to see the nurse. [ 83 ] Aramini told Hagan he initially locked out the machine but could not find the leak. There is no E-stop at the back of that machine and Hagan would have expected Aramini to come and get him. Hagan said he had never known Aramini to troubleshoot without either locking out the machine or having a spotter.

He said it is possible to partially lockout that machine but he would not necessarily expect Aramini to know that. [p. 40 transcript Oct. 06/11]. [ 84 ] CROSS-EXAMINATION OF JAMES HAGAN Hagan acknowledged that he is familiar with the training provided to maintenance mechanics but he does not do the training, it is done by an independent, outside firm. The training goes on every week for certain employees at different times and they are retrained a year later. He would not be present when Aramini was trained.

Hagan defined troubleshooting as the investigation to find out what is wrong with a piece of equipment, and cycling a machine is trying it out after it is fixed to ensure it is running smoothly. [ 85 ] Troubleshooting does not always mean running the machine, sometimes you troubleshoot when the machine is not in operation. Hagan estimates that troubleshooting is done when the machine is operating 60% of the time and that 40% of the time it is cut and dry as to what is wrong.

So 60% of the time you need to run the machine in order to watch and listen to find out what the problem is. [ 86 ] A maintenance mechanic’s whole job is to determine the problem and fix it, something they do every day.

Troubleshooting is the job specifically undertaken by the maintenance department and not something the machine operator would usually be doing. [ 87 ] Hagan agrees that the training in lockout involves the Industrial Regulations; the regulations are made under the Occupational Health and Safety Act and the company’s policies and procedures are derived also from the Act following the laws set out in the Act. [ 88 ] Hagan agrees that before conducting work on a machine you need to lock it out.

He agrees that there are very specific situations in which a machine has to be shut down and locked out but troubleshooting is not one of them.

In reference to section 42(1) of the Regulations [851] he acknowledges that the power supply has to be locked out and tagged before any work is done but that the first step is in complying is knowing which parts are live exposed parts [p. 49 transcript Oct. 06/11]. [ 89 ] Hagan agrees that the legislation does not say to shut down a machine when troubleshooting and that nowhere in Transgear’s training program is a worker instructed to shut down a machine when troubleshooting and they could not be instructed that way because 60% of the time you could not figure out the problem unless you were troubleshooting with the machine live and active [p. 50 & 51 transcript Oct. 06/11]. [ 90 ] Hagan was unaware that the back of the machine gate or the area through which Aramini entered was not locked or bolted shut.

He acknowledges there were no signs on the gate or area through which Aramini entered and we know that there were live exposed electrical parts behind that fence because Aramini was electrocuted. [ 91 ] In reference to exhibit # 13 Tab 15 which is the Linamar Electrical Safety Program page 227 noted in the top right hand corner down at the bottom of the page at 5.1.2 says: “The entrance to a room or other enclosure containing exposed energized electrical parts shall be marked by conspicuous signs stating that entry by unauthorized persons is prohibited.

The rooms shall also be secured.” [p. 53 transcript Oct. 06/11]. [ 92 ] Hagan agrees the area seen in Exhibit Two Tab One is the fencing area at the back of KVA 003 that would open up when the bolt is removed and there is no other way to enter that area, not from the front, or either side. He agrees the cabinet to the left of this fenced area runs all along the side of that area and has a sign saying “Danger: High Voltage”. He says the right side of the fenced area is enclosed by another cabinet which is the RF transformer which is another power supply for the same machine.

The front of the machine [which forms the back of the fenced area when you enter from the back] has a door that opens and closes and that is where the robot puts the parts in and out. You cannot go straight through to the front area from the back because there is a tank there full of fluid. [ 93 ] In respect to troubleshooting: Q; “I understand that’s part of the lockout training. Is that right?” A: “No”. Q: “Okay. When is that training given to them; the troubleshooting training?” A: “Through the 8,000 hour apprenticeship program.” Q: “Okay… maybe you can tell me again.

What is the policy or the training that is provided on troubleshooting when you’re exposed to a hazard?” A: “the-if you have to troubleshoot live, per se, you must have a spotter. That spotter must be able to see where you are, what you’re doing and must be able to reach an E-stop.” [p. 56 transcript Oct. 06/11].

[ 94 ] Hagan A: “And that spotter must also have CPR?” … “And now CPR includes defib as well.” Q: “And is that the same if the hazard is electrical or mechanical?” A: “Yes. It doesn’t matter.” ….Exhibit 13: Q: “Tab 10 ...you’ll see there is a test on the second and third page of that tab. And the test has certain questions and answers given to each worker after they complete the lockout training. And I am looking at question 15.

And it says: “When testing or troubleshooting equipment and complete full lockout is not possible, it is not necessary to lockout as long as a spotter is available to ensure the area is clear and all partial lockout procedures are followed.” That’s what the question-answer.” A: “Yes….Q: “And the answer is true, correct?” A: “Yes.” [pp. 57-58 transcript Oct. 06/11]. [ 95 ] Hagan acknowledges that the above question 15 is during the lockout training but in response the Question: “So, presumably, there is some training given to them on troubleshooting during that lockout program?” He answers: “It would be very vague-it would not be, by any means, machine specific.

It’d just be a very vague reference to, I guess, for lack of a better word.” And the further Question: “Okay. So they would not be told anything further than what is in question 15 which is when testing or troubleshooting equipment and full lockout is not possible, it’s not necessary to lockout as long as a spotter is available to help ensure the area is clear. That’s what they would’ve been told, fair?” He answers: “Correct. Yes”.

Q: “And it wouldn’t contain any further training in that area?” A: “No.” Q: “Now, were there any written policies for troubleshooting at the time of this incident?” A: “None that I’m aware of, no.” Q: “And are there now?” A: “No, I don’t believe so.” Q: “So nowhere is it written down what the procedure is for troubleshooting live, correct?” A: “Yes.” P 58 transcript Oct.06/11]. [ 96 ] Hagan acknowledges that troubleshooting is learned doing their apprenticeship hours, through workers telling them, or the supervisor telling them, but it is not documented when a worker has been given that particular training [p. 59 transcript Oct. 06/11]. [ 97 ] Hagan acknowledges that an investigation took place after the accident and is referred to Exhibit #3 which is a copy of the document they produced as a result of the investigation and is referred to

Section Five: Corrective Actions and Verifications, Short- Term Corrective Actions to be taken and Long-Term Corrective Actions. Long term includes revising the lockout procedure to include high power off when troubleshooting which Hagan explains means E-stop and the breakers disconnect. That would eliminate the energy to the bus bars [through which Aramini was injured].

And Long Term includes to interlock the perimeter or fixed gate guard, which means to open up the gate area where Aramini entered would shut the power down. [ 98 ] Hagan said that “maybe 20 percent of the 60 would be where you actually have to remove a guard” in response to the question how often it would be necessary to do troubleshooting behind a guard [p. 64 transcript Oct.06/11]. A spotter is not necessary unless you are troubleshooting behind a guard.

And the spotter is only necessary because you are exposing yourself to a hazard. [ 99 ] Hagan acknowledges that sometimes you need to run a machine to find where the leak is coming from and in fact the machine would stop leaking if it were shut down. [p. 66 transcript Oct.06/11]. [ 100 ] Hagan acknowledges that the test in April 2008 had changed from the previous lockout tests and the 2008 test is the same as the April 2009 test with Question 15 [Exhibit #13 Tab 8] now reading “ When testing or troubleshooting equipment and complete lockout is not possible, it is not necessary to lockout as long as a spotter is available to help ensure the area is clear and all partial lockout procedures are followed.” Hagan says the only training provided on this partial lockout procedure was experience through their apprenticeship.

And he would not know what the actual training was.

He acknowledged the question sets out the only purpose of the spotter is to ensure the area is clear of other workers [p. 71 transcript Oct.06/11]. [ 101 ] The testimony in cross-examination continues with Hagan acknowledging that the spotter is there to make sure no one else comes into the area of the machine when a worker who is troubleshooting has gone past a guard and exposes himself to a hazard: Q: “And one of the purposes of the spotter is to ensure that nobody else enters the area and exposes themselves to the hazard, right?” A: “Yes.” Q: “They, unfortunately, are exposed to the hazard.

It’s part of the job, right?” A: “Yes.” Q: “Is that correct?” A: “Yes.” Q: “And from what you said earlier about 20 percent, 60 percent of the time you are troubleshooting live, you’re doing so behind a guard, right?” A: “Yeah.” Q: “And you are exposing yourself to a hazard?” A: “Yes.”. {p. 72 transcript Oct.06/11]. [ 102 ] The cross exam of Hagan continues with reference to the Linamar Hazardous Energy control Program Exhibit 13 Tab 11 and Hagan acknowledging that nothing in that document tells you what to do when troubleshooting.

It is the policy for lockout and Q: “…nowhere in that policy does it tell a worker what to do when troubleshooting, right?” A: “No.” [transcript p. 73 Oct.06/11]. [ 103 ] In response to questions Hagan acknowledges the first purpose of a spotter is to ensure that no one else enters the area and the second purpose is to stop the machine if something happens, and that is the same whether exposed to electrical or mechanical hazard. The spotter is the first to witness if there is a problem and stop the machine once the problem occurs.

Q: “And, again, if a person is troubleshooting and is electrocuted, it’s their job to press the emergency stop button to stop the machine?” A: “Yes.” Q: “Now, inherently, the person first has to be electrocuted, right?” A: “Yes”. [pp. 74 to 75 transcript Oct. 06/11]. [ 104 ] Finally, Hagan acknowledges he did not give any specific training to Aramini on partial lockout, nor does he know if he received any specific training, nor doe Hagan go to specific machines with Aramini and tell him how to partially lockout. [p. 75 Transcript Oct.06/11]. [ 105 ] RE-EXAMINATION OF JAMES HAGAN Hagan acknowledges there is a lockout placard on each machine, it would not be possible to teach lockout on 176 machines to Mr.

Aramini, and the direction on the KVA is to lockout whenever you remove a guard. The copper tubing is only energized when the machine is actually processing a part, and it would not be appropriate to take the guarding off the back of the KVA and use a spotter. Hagan had never heard of anyone entering the back of the KVA without locking it out. [ 106 ]

SUMMARY OF THE EVIDENCE OF DARRYL GOODWIN Goodwin has been with Linamar for 21 years and the operations manager at Transgear for five or six years. After the accident he was involved with the investigation of Aramini’s accident. He put a group of people together and they brainstormed and threw ideas down on the table. He said they do not represent conclusions reached by Linamar about the accident they would just be ideas thrown out.

And they use that brainstorming to come up with potential corrective actions [Exhibit #3]. They did not conclude there was impropersignage, lack of guarding, nor that they needed better guarding, although Linamar upgraded the guarding and the equipment after thefact. The conclusion he reached in the course of his investigations as to the cause of the accident was: “There was a failure to lockout.It’s very simple.” [p. 87 transcript Oct.06/11]. [107] THE LAW Both the prosecution and the defence cite the cases of Sault Ste. Marie and The City of Hamilton. The case of R. v. Sault Ste. Marie (City) [1978] 2.

S.C.R. 1299 established the defence of due diligence in public welfareoffences, it recognized three categories of offences with Justice Dickson stating at page 18: “…there are compelling grounds for the recognition of three categories of offences rather than the traditional two: 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must beproved by the prosecution either as an inference from the nature of the act committed, or by additional evidence; 2.

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited actpima facie imports the offence, leaving it open to the accused to avoid liability by proving he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistakes set of facts which , if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event .

These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’scase. 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.” Due diligence is the defence in the case at hand and no one questions that. In the paragraph proceeding the quotation above, JusticeDickson states: “In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that alldue care has been taken.

This burden falls upon the defendant as he is the only one who will generally have the means of proof. Thiswould not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecutionmust prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balanceof probabilities that he has a defence of reasonable care.” [108] The Occupational Health and Safety Act is a public welfare statute. Justice Sharpe of the Ontario Court of Appeal inRegina v. Hamilton (ON CA), [2002] O.J.

No. 283 at page 6, 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.” [109] The prosecution refers to the case of R. v. Seeley & Arnill Aggregates Ltd. [1993] O. J. No. 443 at paragraph 17 whichstates: “The company must show that it took all reasonable steps at the time and place to avoid the particular event.”; And R. v.Kurtzman (ON CA), [1991] O.J.

No. 1285 at paragraph 37 which says: “The due diligence defence must relate to thecommission of the prohibited act not some broader notion of acting reasonably”. [110] The prosecution quotes the Ontario court of Appeal case of R. v.. Dofasco Inc. (2007) 2007 ONCA 769 , 87O.R. (3d) 161 at paragraph 24: “workplace safety regulations are not designed for the prudent worker. They are intended to preventworkplace accidents that arise when workers make mistakes, are careless, or are even reckless.

In our view, this principle also extends todeliberate acts of employees while performing their work.”; And at paragraph 25: “ In our opinion Dofasco’s argument ignores commonsense. Employees do not deliberately injure themselves.” [111] This Court further notes paragraph 27 of the Dofasco case, supra, which concludes: “…The injury he suffered was as aresult of his deliberate act, but it was

an act done in furtherance or productivity in the work undertaken for the employer and not for anyother reason. To suggest that the responsibility for the injury, pain and suffering rests squarely on his shoulders would be unfair becausedefects in the process for performing the work in question and the absence of a physical guard contributed significantly to the accident.” [112] A case familiar to the defence, with its principles adopted by the Ontario Court of Appeal in R. v. London Excavators (ON CA), [1998] O. J. No. 647, and the Superior Court decision of R. v. Inco [2001] O.J. No. 4938, is R. v.

Gondor [1981] Y.J. No. 16, the Gondor case says at paragraph 22: “Reasonable care implies a scale of caring. The reasonableness of the care is inextricably related to the special circumstances of eachcase. A variable standard of care is necessary to ensure the requisite flexibility to raise or lower the requirements of dare in accord withthe special circumstances of each factual setting. The degree of care warranted in each case is principally governed by the followingcircumstances: (a)Gravity of potential harm. (

b) Alternatives available to the accused. (

c) Likelihood of harm. (

d) Degree of knowledge or skill expected of the accused.

(

e) Extent underlying causes of the offence are beyond the control of the accused.” And at paragraph 23: “The greater the potential for substantial injury, the greater the degree of care required”. And further paragraph 25:“Reasonableness of care is often best measured by comparing what was done against what could have been done.” [113] Both the prosecution and the defence cite the Ontario court of Appeal case of R. v. Timminco (ONCA), [2001] O.J.

No. 1443 with the prosecution referring to paragraph 24 which says: “ the burden of proof is on the Crown to establishthe actus reus of a strict liability offence, beyond a reasonable doubt. The burden of proving a defence is on the defendant in theproceedings. This is in part because…it is the defendant who is in the best position to know what actions, if any, were taken to avoid astatutory breach”.

And at paragraph 25: “ …The very nature of the machine, how it works and the risks it poses to the worker are allmatters within the employer’s special pool of knowledge.” [114] The final two cases referred to by the prosecution are Lee Valley and National Wrecking. In Lee Valley Tools Ltd.[2006] O.J.

No. 561 Justice of the Peace Woodworth in a decision upheld by the Ontario Court of Justice on its findings but returned tothe Justice to enter a verdict overturning the original stay of proceedings for delay, which appeal was upheld by the Ontario Court ofAppeal, Justice of the Peace Woodworth says: “General knowledge of safety procedures is not sufficient to remove the onus for an employer to provide training andinstruction in relation to a specific activity that may have very unique inherent dangers and require specific training in safe procedures toavoid those dangers. Although both Mr. Marusik and Mr.

Johnson indicated that they were aware of other safe methods of performingthis same task both parties gave evidence that they were never provided instruction in, nor directed to use, any method other than theinherently unsafe method they were using on the date in question. An employer is not entitled to rely upon general safety knowledge ofeven a well-trained, well-educated or very experienced employee where there is no indication that the proper procedure for a particulartask is either a fundamental part of their training or a specific aspect of that individual employee’s skill-set.” [115] In R. v.

National Wrecking [2005] O.J. No. 3538 the prosecution refers to paragraphs 71 through 74 where Justice Keastsays at paragraph 71: “The purpose of workplace safety policy , whether rooted in the legislation or in plain commonsense, is to protectthe widest possible group of people, which goes beyond the average.” At paragraph 72: “ the workplace contains an endless variety ofpeople: (a)Different levels of education; (

b) Different levels of experience; (

c) Different levels of judgment; (

d) Different levels of perception; (

e) Different levels of concentration and focus; (

f) Different levels of attention and awareness; (

g) Different levels of analysis; (

h) Different levels of observation; (

i) Different levels of understanding; (

j) Different levels of intelligence.” And at paragraph 73: “The target of workplace safety is the widest and lowest common denominator of people. Safety principles aredesigned to cut across the differences in people. As much as possible, rules are designed to cater, not to the so-called average, but toeveryone. And of special note, at Paragraph 74: “ For example, something as simple as a caution or warning sign or taping around a hazard, issomething everyone understands, regardless of their individual differences.” [116] The defence refers to the Hamilton case [supra] at paragraphs 18 and 20 which highlight proper statutory

interpretationand balancing an

interpretation that promotes the larger objectives of the legislation and at the same time respects the procedural rights ofthe accused. [117] The defence refers to the Domtar case [cited in paragraph 10 supra] at paragraphs 68 to 71 which deals with the wordingin an agreement and focuses on paragraph 71 which says: “Even if such ambiguity remains about the meaning of the words “similararrangement”, it is a rule of construction that if a vagueness still remains the uncertainty must be resolved in favour of the defendant,Domtar.” [118] The defence refers to King Paving [cited in paragraph 10 supra] that in assessing the facts of the case they must beassessed as of the date of the accident or in some ways just prior to the accident. [119] Reference is made to the 1994 Kellogg Canada Inc.case [cited in paragraph 10 supra] where the Ontario Justice Pockelestated at page 9, that the Occupational Health and Safety Act does not impose a duty on an employer to anticipate every possible failure

and goes on to say the Act does not impose liability on an employer “ where a worker does a prohibited act of violating a lock-out policy intentionally through his or her own mistake or inadvertence” This finding in this case is in complete contradiction to the subsequent decision by the Ontario Court of Appeal in the Dofasco case in 2007 [paragraph 110 supra] and will not be considered further by this Court. [ 120 ] The defence refers to the Stelco case [cited in paragraph 10 supra] in respect to the fact that a proper guard was a guard that required a tool or some form of tool to unlock or open.

Guarding is intended to be opened, and this Court agrees that only makes sense in respect to maintenance and repairs of machinery. [ 121 ] This Court accepts the defence assertion that it cannot use post accident improvements as evidence of liability and they have to be considered very cautiously because there is a strong policy consideration to encourage employers to take remedial action. The defence sates this is supported in the Dana Canada Corp [2008] O.J. No. 4487 .

However the Court notes the Gondor case [quoted in paragraph 112 supra] has principles which also need consideration in deciding what could have been done to prevent the accident. [ 122 ] PRELIMINARY DETERMINATION OF FACTS I have reviewed the witness testimony and the exhibits and find the following to be uncontroverted facts in this case: 1. Amelio Arimini is a millwright for the Defendant Linamar Holdings Inc. carrying on business as Transgear Manufacturing at 400 Massey Road in Guelph, Ontario; 2.

Arimini has done work as a maintenance mechanic at the Transgear plant for approximately 11 years prior to the accident on May 20, 2009. He received all of his 8000 hours training and experience at Transgear except for the yearly testing on his knowledge of procedures and safety which is conducted on behalf of Transgear by an independent company, and he passed his certification in the Province of Ontario by writing and passing a government test based on the training he received at Transgear before being certified as a millwright; 3.

The Defendant Transgear and its parent company Linamar have developed and instructed their employees on safety procedures to protect them in the safe operation and repair of machines and equipment pursuant to the Occupational Health & Safety Act, and have developed and installed machine guards and signage to protect employees in the performance of their duties. The issues in this case revolve around the adequacy of the training and safety procedures, and the supervision of employees in ensuring compliance, and the adequacy of the signage/guards and troubleshooting procedures. 4.

The Defendant Company instructed maintenance mechanics on lock-out procedures which must be adhered to when working on or repairing machines, or doing routine maintenance such as oiling or adjusting machinery. Lock-out means the machine has zero energy, no electrical power, no hydraulic power, no compressed power, no power from gravity, absolutely no energy. 5. The exception to lock-out is troubleshooting. Troubleshooting is when a maintenance mechanic cannot identify the problem to be repaired without first running the machine to locate where the problem or malfunction is.

Once the problem is identified, the policy requires lock-out before repairing, disassembling, or removing parts or equipment for replacement or repair. 6. The Defendant has no written policy on troubleshooting other than instructions given and the tests conducted on behalf of the Company once a year in respect to lock-out procedures and the reference in question 15 in each year’s test to troubleshooting [Exhibit # 13]. This yearly test is taken by all millwrights and maintenance workers at staggered times at various locations conducted on behalf of the Defendant Company.

There is no record kept by the Company as to the specific training each employee has on troubleshooting, nor is there any evidence of any troubleshooting instructions given at the yearly refresher course on lock-out procedures. 7. The tests are apparently given yearly although Tab #1 in Exhibit #13 indicates the injured worker Aramini received lockout training in years 2000, then 2004 to 2009, but no mention in 2001, 2002, or 2003. Copies of the test provided in Exhibit #13 commence in 2004 as written by Aramini up to and including April 14 th 2009. 8.

Question # 15 is always the same question and it is the only reference to troubleshooting in this yearly test. The question was modified in 2008 but prior to that throughout the years 2004 to 2007 pursuant to the Training Records provided by the Defendant in Exhibit # 13, it was the same question with a true answer. From 2004 to 2007, Question #15 states: “When testing equipment and a lockout is not possible, it is not necessary to lockout as long as a lookout is available to help ensure the area is clear”. 9.

Question #15 was modified in 2008 and was the same modified version in 2009 with a true answer it now states: “When testing or troubleshooting equipment and complete full lockout is not possible, it is not necessary to lockout as long as a spotter is available to help ensure the area is clear and all partial lockout procedures are followed.” 10. There is no evidence of instruction given or procedures or policies developed by the Defendant Company in respect to partial lockout although partial lockout is considered in question #8 of the lockout test when working on a machine, as outlined in paragraph 11 below.

There was no evidence of signage at the machine where Aramini was injured, instructing employees in regard to partial lockout although full lockout procedures were provided. 11. The tests throughout 2004 to 2009 written by maintenance workers generally and Araimini’s tests particularly have two other questions which bear mention to the findings of fact in this case.

Question number 2 asks with a true answer: “A machine must be locked out when any safety device is removed or not working properly” and Question number 8 asks with a true answer: “It is best to lock out the main power source but when this is not possible, the

section you are working on must be locked out.” 12. I find the KVA 003 machine had 14 hazard signs, and 7 lockout signs with additional high voltage signs, but none of those signs were located at the chain fence guarding the back of the machine where the injured worker entered. The fence guarding was bolted

in place and whether or not that bolt had to be removed by Armani at the time he entered the guarded area is not material to this case, other than it was known to be a bolted fenced area with the inherent risks to enter. [ 123 ] FINDINGS IN RESPECT TO COUNT 1 : Count 1: failing as an employer, to ensure the measures and procedures prescribed by s. 41 of Ontario Regulation 851 were carried out in a workplace located at 400 Massey Road, Guelph, Ontario contrary to section 25(1) (

c) of the Occupational Health and Safety Act R.S.O. 1990, c. O.1 , as amended.

Section 41 of Reg. 851 provides: “The entrance to a room or similar enclosure containing exposed live electrical parts shall have a conspicuous sign, warning of the danger, and forbidding entry by unauthorized persons. R.R.O. 1990, Reg.851, s.41 .” I find the guarding at the back of the KVA 003 machine enclosed the back portion of the platform of the pieces of machine

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