R. v. Protech Roofing Waterproofing Limited, 2010 ONCJ 591

COURT FILE No.: Region of Durham 998 08 2994 DATE: 2010·12·06 Citation: R. v. Protech Roofing Waterproofing Limited , 2010 ONCJ 591 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under 116(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: Her Majesty the Queen in Right of Ontario Appellant — AND — Protech Roofing Waterproofing Limited Respondent Before Justice J. De Filippis Heard on November 9, 2010 Reasons released on December 6, 2010 Mr. T. Schneider ................................................................................................... for the Appellant Mr.

M Cohen ..................................................................................................... for the Respondent On appeal from an acquittal by Justice of the Peace H. Lancaster on 9 September 2009. De Filippis, J.: Introduction [ 1 ] This appeal arises from a prosecution that originally involved three companies and two individuals. The companies are the Respondent, Dalar Contracting Ltd, and Structform International Limited. The individuals are Allan Cleary and Francisco de Jesus.

All faced one or more charges in an Information containing 10 counts under the Occupational Health and Safety Act (OHSA) because of an event that occurred on September 26, 2007: Three workers were working in a pit applying Blueskin Primer to a cement wall. The wall was wet and the primer did not adhere properly. The primer was flammable. A torch was lowered into the pit to dry the wall. Shortly after, three was a flash-fire and a worker suffered second-degree burns. The trial lasted five days. Francisco de Jesus pled guilty during the trial.

All charges against the remaining defendants were dismissed on a motion for a directed verdict of acquittal. The Crown appealed the dismissal of these charges. Before the appeal was argued the Crown abandoned its appeal with respect to all charges against all Respondents except for one count alleging that Protech Ltd violated s. 123 of Regulation 213/91 to the OHSA. Evidence at Trial [ 2 ] As indicated, the trial of this matter involved five accused and ten counts. This appeal concerns one count against one company. The

summary of evidence is restricted accordingly. [ 3 ] Dalar Contracting Limited was hired to construct a car dealership. It retained Structform to do concrete formwork on the project that included a below-grade area at the north end of the project (the “pit”). Mr. Allan Cleary was the site supervisor employed by Dalar. Mr. Mateus Martins was employed by Structform and Mr. Daniel Symon was the supervisor for Structform. The pit was approximately 60 feet long, four feet wide and 16 feet deep. Dalar also retained the respondent in this appeal, Protech, to waterproof the pit prior to it being backfilled.

Protech employed workers Ben Hickey, Roberto Lotta, and a supervisor Francisco Jesus, at the project. [ 4 ] On the day in question, Mr. Hickey, Mr. Jesus, and another worker, Mr. Martins entered the pit via a ladder located at one end of the pit. In the pit, Mr. Hickey was farthest from the ladder. Mr. Martins was between Mr. Jesus and Mr. Hickey while Mr. Jesus was at the end of the pit closest to the ladder. Mr. Hickey mixed an open pail of very flammable primer in the pit. He had not been trained in how to apply the primer and he had not worked in a pit like this before.

He began applying the primer to the concrete surface in preparation for the application of a waterproofing membrane. The cement wall had to be dry for the Blueskin Waterproofing to properly adhere to the wall. The bottom part of the wall was wet. One industry practice is to dry the brick with a blow torch. There were no exhaust fans or fire extinguishers in the pit, nor where there danger signs or workers instructed to refrain from smoking.

Another primer, that was not flammable, could have been used instead. [ 5 ] The site supervisor, Mr. Allan Cleary, told Mr. Lotta that there was no need to dry any part of the wall as the primer did not need to be applied that low on the wall. Both were concerned about a torch being used. Mr. Lotta spoke to Mr. Jesus who, contrary to instructions given by Mr. Cleary , instructed Mr. Lotta to lower the propane torch into the pit. A propane torch was lowered into the pit to dry the wet area on the cement wall. Flammable vapours were present in the pit from the Blueskin primer. Mr.

Lotta opened his end of the propane tank which was located at the top of the pit. An explosion occurred and a flash fire traveled across the floor of the pit igniting the primer, the wall, and Mr. Hickey. [ 6 ] Mr. Jesus and Mr. Martins were able to exit the pit but Mr. Hickey was trapped by the flames. Mr. Hickey called for Mr. Lotta, who was working at the top of the pit, to bring the ladder to the other end of the pit so that he could climb out of the pit. Mr. Hickey suffered serious second-degree burns to his face, arms and leg.

Reasons for Judgment at Trial [ 7 ] In granting the motion for a directed verdict of acquittal, the justice of the peace found that there was no evidence the Respondent failed to take appropriate precautions. He seems to also have found that there was no evidence that a blow torch had been ignited. He stated;

Section 123 speaks to precautions to prevent a fire when using a blow torch….There was no evidence that Structform employees, including Mr. Martin, was using any such equipment…. While Mr. de Jesus is alleged to have lit the propane torch, he pled guilty to charges before testifying before this court. There was evidence presented by the Crown witnesses that Mr. Lotta and Mr. Hickey, both Protech employees, that precautions, including special precautions, were taken by Protech to prevent a fire, especially when flammable materials were present. The Crown’s evidence didn’t indicate otherwise.

The court heard the regularly held toolbox talks addressed safety matters, including use of blowtorch when flammable materials are present….Mr. Lotta of Protech and Mr. Cleary of Dalar Contracting suggests that Mr. de Jesus acted on his own and proceeded to use the torch despite concerns expressed by Mr. Lotta and Mr. Cleary….There was no evidence that anyone saw the lit torch or evidence that the torch was capable of working.

Analysis [ 8 ] The regulation in question provides that “Precautions to prevent a fire shall be taken when using a blow torch or welding or cutting equipment or a similar piece of equipment” O.Reg.213/91, s. 123 . [ 9 ] Offences under the OHSA are strict liability offences. The Crown need not prove mens rea. The Crown must establish the actus reus of an offence beyond a reasonable doubt. If so, the burden shifts to the defendant to establish a defence of due diligence on a balance of probabilities.

This defence can be established by showing that the defendant reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or by showing that the defendant took all reasonable steps to avoid the prohibited act. R. v. City of Sault Ste. Marie , 1978 CanLII 11 (SCC) , [1978] 2 S.C.R. 1299 . R. v. Kurtzman , 1991 CanLII 7059 (ON CA) , [1991] O.J. No. 1285 ( C.A. ) . Ontario (Ministry of Labour) v. Hershey Canada Inc ., 2006 ONCJ 420 (CanLII) , [2006] O.J. No. 4474 R. v. Timminco Ltd . 2001 CanLII 3494 (ON CA) , [2001] O.J.

No. 1443 (ONCA) . [ 10 ] The OHSA, being a public welfare statute is to be interpreted liberally. In this regard, the Court of Appeal for Ontario has stated; The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the 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 the purposes and objectives of the legislative scheme. Narrow or technical

interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided. Ontario (Ministry of Labour) v. Hamilton (City), 2002 CanLII 16893 (ON CA) , [2002] O.J. No. 283 (C.A.) Timminco, supra [ 11 ] The Court of Appeal for Ontario has described the duties imposed by the OHSA on an employer as follows; An “employer” is obliged by s. 14(1) [now 25(1)(c)] to “ensure” that the “measures and procedures” prescribed by the Regulations are carried out in the “workplace”.

The relevant definition of “ensure” in the Shorter Oxford English Dictionary (3 rd ed.) is “make certain”. Section 14(1), therefore, puts an “employer” virtually in the position of an insurer who must make certain that the prescribed regulations for safety in the workplace have been complied with before work is undertaken by either employees or independent contractors. R. v. Wyssen, 1992 CanLII 7598 (ON CA) , [1992] O.J. No. 1917 (C.A.) [ 12 ] The test for a directed verdict of acquittal is the same as that applied by a judge presiding at a preliminary inquiry. In R v

Arcuri 2001 SCC 54 (CanLII) , [2001] 2 S.C.R. 828, the Supreme Court of Canada once again considered the duties to be performed by a judge presiding at a preliminary inquiry. The Chief Justice stated (at paragraph 1) that: This appeal raises the question of whether a preliminary inquiry judge may "weigh the evidence" in assessing whether it is sufficient to warrant committing an accused to trial.

For the following reasons, I reaffirm the well-settled rule that a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict, and the corollary that the judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. As this Court has consistently held, this task does not require the preliminary judge to draw inferences from the facts or to assess credibility.

Rather, the preliminary inquiry judge must, while giving full recognition to the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty. [ 13 ] The Chief Justice made the following additional comments (paragraphs 21-22 and 29-30): The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty": Shephard , supra , at p. 1080….Under this test the preliminary inquiry judge must commit the accused to trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction"….

The test is the same whether the evidence is direct or circumstantial…. The question that arises in the case at bar is whether the preliminary inquiry judge's task differs where the defence tenders exculpatory evidence, as is its prerogative under s. 541. In my view, the task is essentially the same, in situations where the defence calls exculpatory evidence, whether it be direct or circumstantial.

Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true. However, where the Crown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed , it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself.

It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. [ 14 ] I am of the opinion that the justice of the peace erred in not considering certain evidence that could establish the actus reus and weighing other evidence that is relevant to the defence of due diligence. Had this been a preliminary inquiry, a committal for trial would have been warranted.

In this regard, the following evidence is particularly significant: • The injured worker was mixing an open pail of very flammable primer in the pit; • The injured worker had not been trained in how to apply the primer and he had not worked in a pit like this before; • There were no exhaust fans or fire extinguishers in the pit, nor where there danger signs or workers instructed to refrain from smoking; • Another primer, that was not flammable, could have been used instead; • In any event, there was evidence that the wet spots on the wall did not need to be dried; • Concern had been expressed about lowering the blow torch into the pit because of the hazard presented by the combination of the spark and the fumes from the primer. • A supervisor with the Respondent company, Mr. de Jesus, ignored this concern and instructed a worker to lower the torch into the pit; • A blow torch was lowered into the pit to dry the wall; • Shortly after this was done there was an explosion in the pit. [ 15 ] I am of the view that a reasonable jury properly instructed could conclude that the blow torch caused the flash fire that injured a worker and that the Respondent failed to take the necessary precautions to prevent a fire when using a blow torch.

It may be that the trier of fact will not come to this conclusion, especially having regard to any evidence of due diligence. Be that as it may, it was not open to the justice of the peace to direct a verdict of acquittal. In other words, had he been sitting with a jury, the justice of the peace would not have been entitled to withdraw the case from their consideration. [ 16 ]

Section 121 of the Provincial Offences Act sets out the powers of an appellate court with respect to an appeal from an acquittal: Where an appeal is from an acquittal, the court may by order, (

a) dismiss the appeal; or (

b) allow the appeal, set aside the finding and, (

i) order a new trial, or (ii) enter a finding of guilt with respect to the offence of which, in its opinion, the person who has been accused of the offence should

have been found guilty, and pass a sentence that is warranted in law. [ 17 ] The appeal is allowed and, as requested by the Appellant, a new trial is ordered. Released: December 6, 2010 Signed: “Justice J. De Filippis”