R v Inland Machining Services Ltd., 2023 ABCJ 125

The Alberta Court of Justice Citation: R v Inland Machining Services Ltd., 2023 ABCJ 125 Date: 20230614 Docket: 210704078P1 Registry: Calgary Between: His Majesty the King - and - Inland Machining Services Ltd. Accused Decision of the Honourable Justice H.A. Lamoureux [ 1 ] The Defendant, Inland Machining Services Ltd., (IMS) is charged with offences under the Occupational Health and Safety Act , S.A. 2017 c O-2.1 as amended.

At the conclusion of the Crown’s case, the following counts on a multi count information, remain for decision by the Court: Count 1: On or about August 16, 2019, at or near Calgary, Alberta, being an employer, did fail to ensure as far as it was reasonably practicable to do so the health and safety of Bhupinder Ubhi, a worker engaged in the work of that employer, by failing to ensure that he was protected from being injured while operating a European Lion Lathe machine, contrary to section 3(1) (a)(

i) of the Occupational Health and Safety Act , S.A. 2017,

Chapter O-2.1 , as amended. Count 9: On or about August 16, 2019, at or near Calgary, Alberta being an employer, did fail to ensure that equipment used at a worksite, to wit a European Lion Lathe machine, will safely perform the function for which it is intended or was designed, contrary to section 12(1)(

b) of Alberta Regulation 62/2003, Occupational Heath and Safety Regulation pursuant to the Occupational Health and Safety Act , S.A. 2017,

Chapter O-2.1 , as amended. Count 10: On or about August 16, 2019, at or near Calgary, Alberta, being an employer, did fail to ensure that equipment used at a worksite, to wit a Modern Lathe machine, will safely perform the function for which it is intended or was designed, contrary to

section 12(

b) of the Alberta Regulation 62/2003, Occupational Health and Safety regulation pursuant to the Occupational Health and Safety Act , S.A. 2017,

Chapter O-2.1 , as amended. Count 11: On or about August 16, 2019, at or near Calgary, Alberta, being an employer, did fail to ensure that equipment used at a worksite, to wit a Poreba Lathe machine, will safely perform the function for which it is intended or was designed, contrary to section 12(1)(

b) of the Alberta Regulation 62/2003, Occupational Health and Safety Regulation pursuant to the Occupational Health and Safety Act , S.A. 2017,

Chapter O-2.1 , as amended. Count 12: On or about August 16, 2019, at or near Calgary, Alberta, being an employer, did fail to ensure that equipment used at a worksite, to wit a Nardini Lathe machine, will safely perform the function for which it is intended or was designed, contrary to section 12(1)(

b) of Alberta Regulation 62/2003, Occupational Heath and Safety Regulation pursuant to the Occupational Health and Safety Act , S.A. 2017,

Chapter O-2.1 , as amended.

Count 13: On or about August 16, 2019, at or near Calgary, Alberta, being an employer, did fail to ensure that equipment used at a worksite, to wit a European Lion lathe, was free from obvious defects, contrary to section 12(1)(

d) of Alberta Regulation 62/2003, Occupational Health and Safety Regulation pursuant to the Occupational Health and Safety Act , S.A. 2017,

Chapter O-2.1 , as amended. Count 24: On or about August 16, 2019, at or near Calgary, Alberta, being an employer, did fail to ensure that equipment, to wit a European Lion Lathe machine was operated, handled, serviced, tested, adjusted, maintained or repaired in accordance with the manufacturer’s specifications set out in the service manual for the lathe, contrary to

section 12(

d) of the Occupational Heath and Safety Code . Count 27: On or about August 16, 2019, at or near Calgary, Alberta, being an employer, did fail to provide safeguards if a worker may accidently, or through the work process, come into contact with moving parts of machinery or equipment, to wit a European Lion Lathe machine, contrary to section 310(2)(

a) of the Occupational Health and Safety Code . Count 28: On or about August 16, 2019, at or near Calgary, Alberta, being an employer, did fail to provide safeguards if a worker may accidently, or through the work process, come into contact with moving parts of machinery or equipment, to wit Modern Lathe machine, contrary to section 310(2)(

a) of the Occupational Health and Safety Code . Count 29: On or about August 16, 2019, at or near Calgary, Alberta, being an employer, did fail to provide safeguards if a worker may accidently, or through the work process, come into contact with moving parts of machinery or equipment, to wit a Poreba Lathe machine, contrary to section 310(2)(

a) of the Occupational Health and Safety Code . Count 30: On or about August 16, 2019, at or near Calgary, Alberta, being an employer, did fail to provide safeguards if a worker may accidently, or though the work process, come into contact with moving parts of machinery or equipment, to wit a Nardini lathe machine, contrary to section 310(2)(

a) of the Occupational Health and Safety Code . Count 31: On or about August 16, 2019 at or near Calgary, Alberta, being an employer, did fail to provide safeguards if a worker may accidently, or through the work process, come into contact with machinery or equipment that may be hazardous due to its operation, to with a European Lion Lathe machine, contrary to section 310(2)(

g) of the Occupational Health and Safety Code . Count 32: On or about August 16, 2019, at or near Calgary, Alberta, being an employer, did fail to provide safeguards if a worker may accidentally, or through the work process, come into contact with a hazard, to wit revolving material being shaped on a European Lion Lathe machine, contrary to section 310(2)(

h) of the Occupational Health and Safety Code .

Count 33: On or about August 16, 2019, at or near Calgary, Alberta, where machinery in OHS Code section 312(1), to wit a European Lion Lathe, was operated without safeguards, the employer failed to ensure that a worker operating the machine wore personal protective equipment that is appropriate to the hazard and offers protection equal to or grater than that offered by the safeguards, contrary to section 312(2) of the Occupational Health and Safety Code . [ 2 ] The Crown sought to amend, and was granted leave to amend, counts 10, 14 and 28 to change the date from August 16, 2019 to August 19, 2019 at the conclusion of the Crown’s case in order to conform with the evidence.

Introduction [ 3 ] The Government of Alberta introduced the current version of the Occupational Health and Safety Act and Regulations (OHS) in 2017. The legislation together with the regulations focusses on duties, both general and specific, of employers, workers, suppliers and contractors as well as defining the roles and responsibilities for supervisors, service providers, including safety consultants, owners, statutory persons and temporary staffing agencies.

The legislation contains extensive provisions with respect to compliance and enforcement of the Act including the granting of powers to officers enforcing compliance, to inspect a worksite, investigate an injury or incident, and issue of Stop Work Orders and Stop Use Orders. [ 4 ] The Occupational Health and Safety Act is public welfare, regulatory, remedial legislation by virtue of

Section 10 of the Alberta

Interpretation Act , RSA 2000 cI-8. It imposes strict liability standards subject to the defence of due diligence. In plain language, the Crown bears the onus of proof to prove the actus reus of each charge on the Information beyond a reasonable doubt. Once the actus reus is proved beyond a reasonable doubt, the Defendant may elect to call evidence of due diligence.

If the Defendant calls evidence, the onus of proof of due diligence is on a balance of probabilities. [ 5 ] As stated by Justice Sanderman in R v Independent Automatic Springer , 2009 ABQB 264 at paragraph 6 : 6 The purpose of the Occupational Health and Safety Act is to protect workers while they are engaged in their employment within the province. It is to ensure that all work sites are safe and free from conditions that might cause harm to any worker. The legislation takes an extremely broad view of worker safety at any work site.

In order to ensure that the safety of workers is achieved, responsibilities are placed upon every employer to ensure that workers can carry out their functions without risk of danger. Employers control the work place and the work that is carried out there is done for the ultimate benefit of the employer, therefore onerous but reasonable expectations are placed upon all employers. In this province, there are many high risk types of employment that require the vigilance of a responsible employer to ensure that no harm comes to any worker.

Facts not in dispute: [ 6 ] The Crown and Defence have filed an Agreed Statement of Facts, Exhibit 1 . The Defendant admits that on August 16, 2019, its employee, Bhupinder Ubhi, was fatally injured while operating a European Lion Lathe machine owned by IMS. The Defendant admits that this lathe falls into the category of manual lathe.

The Crown’s Case [ 7 ] The Crown has called four witnesses, the Occupational Health and Safety Act Investigator, Shantha Nandana, and his partner, Katya Ponich. At all times both were working as investigators pursuant to the provisions of the OHS legislation. The Crown also called the Medical Examiner, Alan Devolin. Finally, the Crown called extensive evidence from an expert witness Ian MacDonald, qualified to give opinion evidence as to the operation of the manual lathe, hazards of operation with respect to the manual lathe, and safety procedures with respect to the use and operation of the manual lathe.

The expert witness’ resume is entered as Exhibit 19 . The resume of Mr. Ian MacDonald, establishes his extensive credentials, education, and workplace and teaching experience with respect to the profession of Machinist, which includes the operation of the manual lathe involved in this case. [ 8 ] Witnesses who testified for the Crown are credible and reliable. The following is a

summary of their testimony as it pertains to proof of the actus reus of the various charges. [ 9 ] The Crown’s first witness, Shantha Nandana, is the lead investigator from OHS who attended at the workplace, the scene of the death of the worker on August 16, 2019. Mr. Nandana attended at the scene at 12:40 PM. The other OHS investigator Ms. Ponich was already present. There were police officers and the medical examiner. Mr. Nandana described the discovery of the body of a male, Mr. Ubhi, wrapped in the Lion Lathe machine, the property of IMS. A part of Mr.

Ubhi’s body extended over the workpiece on the Lion Lathe. Mr. Ubhi’s hands were observed by Mr. Nandana to be below the workpiece on the Lion Lathe. The workpiece was seized by Mr. Nandan on Monday, August 19, 2019. It is Exhibit A a demonstrative aid to testimony in the trial.

There are also photos of the workpiece entered as exhibits in the trial. [ 10 ] The Court heard extensive expert and lay evidence as to the physical component parts of the manual lathe, the manner in which it is operated, the type of work undertaken on the manual lathe and the dangers presented to the worker who seeks to operate the manual lathe. IMS had a number of lathes in its workplace, four of which were manual lathes, the subject matter of these proceedings. Mr.

Ubhi died while operating the manual lathe described in count 1 and 2 the “European Lion Lathe machine”. [ 11 ] The manual lathe is to be contrasted to the more modern form of lathes known as computer controlled or CNC lathes. The CNC lathes are controlled by software built into the machine which guides the cutting of the workpiece. In the CNC lathe, unlike the manual lathe, the workpiece, to be worked upon by the worker, is completely enclosed. [ 12 ] The manual lathe is in common use in Alberta as a result of the requirements of the oil and gas industry.

The manual lathe, in contrast to the CNC lathe, requires more expertise to operate. The manual lathe is, a piece of machinery with a number of points of potential contact between the machine and the worker. The points of contact for the manual lathe, according to the OHS Investigator included a rotating spindle, which is connected to the motor, the chuck, which is the gripping device that grips the workpiece that the worker has introduced into the lathe the cutting tool; and at the other end of the lathe, the tail stock which rotates with the workpiece. [ 13 ] Mr.

Nandana testified that the OHS legislation requires employers to ensure that physical safeguards are installed on the manual lathes at points where the worker can come into contact with moving parts of the manual lathe. The safeguards required under the legislation are intended to address the inherent hazards associated with operation of manual lathe.

They include the requirement of a safeguard to prevent the worker from coming into contact with the rotating chuck, a safeguard to prevent the worker from being injured by the cutting tool and in particular metal chips flying off of the cutting into the face of the worker. There were no safeguards of any type on the manual lathe, on the day of the accident. [ 14 ] The OHS Investigator described the legislative scheme under the Occupational Health and Safety Act with respect to hazards of operation of moving parts in machinery. There are general and specific duties in the Statute and Regulations.

The first duty is to address the potential for elimination of the hazard. The second duty requires that the employer implement a series of engineering controls to address the hazards. The third duty is implementation of administrative safeguards which includes proper training, education, assessment of potential hazards, addressing hazards proactively, providing appropriate equipment and attire for workers engaging with machinery such as the manual lathe. OHS Investigator, Mr.

Nandana took photographs of the manual lathe, photographs of the entire workplace where the manual lathes were located in the business premises of IMS, and a series of photographs documenting the extraction of the body of Mr. Ubhi, the deceased worker, from the interior operating mechanism of the lathe. [ 15 ] Mr. Nandana also identified Exhibit 5 as the closed-circuit television recording operated by IMS which depicted the entire event leading to the death of Mr. Ubhi as he operated the manual lathe.

Exhibit 5 is a particularly important exhibit as it shows the entire workplace of IMS in which the manual lathe was located. It depicts the actions of the deceased, Mr. Ubhi, entering into the workplace, proceeding over to the manual lathe. It shows the actions of Mr. Ubhi immediately prior to his being drawn into the machine. The CCTV footage, Exhibit 5 , also shows the workplace clothing that Mr. Ubhi was wearing at the time of his death, gloves, and long-sleeved coveralls. [ 16 ] The OHS Investigator, Mr.

Nandana, testified that his review of Exhibit 5 confirmed, together with his attendance at the extraction of the worker’s body from the lathe, that at the time of the worker’s death, Mr. Ubhi was reworking or finishing the threads on a large cylindrical workpiece, Exhibit A . Mr. Ubhi was not using the cutting tool on the manual lathe, rather he was applying emery cloth to the threads of the workpiece in an effort to smooth out burrs or defects on the threads of the workpiece. There was no physical barrier or any other type of safeguard between Mr. Ubhi and the workpiece as he applied the emery cloth.

There was no safeguard in place to prevent the deceased worker from contacting the spinning workpiece as he sought to polish the threads with the emery cloth. The Defendant admits that Mr. Ubhi died as a result of multiple blunt force injuries resulting from the operation of the Lion Lathe ( Exhibit 1 paragraph 5). Exhibit 4 , a photograph taken by the OHS Investigator depicts the entrance to the IMS workplace, the interior of the workplace, the Lion Lathe, and three other lathes also owned by the Defendant, the Modern lathe, the Poreba lathe, and the Nardini Lathe.

The Defendant admits ownership of all four lathes in the Statement of Agreed Facts, Exhibit 1 . At the time that the deceased worker was operating the Manual Lion Lathe he was wearing long-sleeved coveralls and work gloves. The work clothing of Mr. Ubhi, in the opinion of the expert witness, Mr. MacDonald, represented a danger to the worker, as the gloves and the long sleeves could come into contact with the rotating moving parts of the manual lathe, thus drawing the worker into the lathe. The OHS

Investigator testified that there was an emergency stop button on the manual lathe as disclosed in photograph 25 of Exhibit 4. The deceased worker would have had no opportunity to apply the emergency stop button given the powerful draw of the worker’s body into the manual lathe the moment that his glove came into contact with the rotating workpiece. Part of the body of the deceased worker became entangled and wrapped around the workpiece of the manual lathe the moment the gloved left hand of the worker came into contact with the rotating workpiece on the lathe.

Photographs entered as part of Exhibit 4 depict the bare left hand of the deceased worker, with the glove that was on the left hand immediately prior to the accident, drawn into the workpiece. The deceased worker is found at the scene of his death with his glove off the left hand but with the glove remaining intact on the right hand.

Exhibit 4 also shows, in addition to the state of the worker’s gloves, the emery cloth utilized by the worker, trapped on the thread of the workpiece. ( Exhibit 4 photograph 68.) [ 17 ] The OHS Investigator also testified about the physical condition of other manual lathes identified in the Agreed Statement of Facts, Exhibit 1 . The Modern Lathe, the Poreba Lathe, and the Nardini Lathe, all manual lathes, owned by IMS, and on the same worksite as the Lion Lathe, did not have any safeguards installed on the day of the accident.

The OHS Investigator issued verbal and then written Stop Work Orders with respect to all four manual lathes located in the worksite of IMS. The OHS Investigator made a demand for IMS hazard assessments existing prior to the accident with respect to the manual lathes. These were not provided. In fact there were no written hazard assessments prior to this accident undertaken by IMS.

The OHS Investigator took photographs of the workpiece with the threads that the deceased worker was working on. ( Exhibit 4 photograph 105, photograph 110.) The actual workpiece was also brought into Court to aide the expert witness in his testimony. It was entered as Exhibit A as a demonstrative aide to Mr. MacDonald as he gave evidence. The Defendant did provide to the OHS Investigator a manual Exhibit 6 of the manufacturers specifications for the manual lathe describing its proper operation, maintenance, and safety components.

Exhibit 6 was in the possession of IMS at the workplace prior to the accident. [ 18 ] On October 23, 2019, the OHS Investigator returned to the worksite of IMS. He met with a corporate representative who showed him the safeguards that had subsequently been installed in compliance with the Stop Use order issued by OHS. Specifically, the corporate representative of IMS showed the OHS Investigator the safeguard for the chuck portion of the Lion Lathe, the tool guard and two trip wires which had been installed in front of the workpiece in two locations.

The corporate representative of IMS demonstrated how the trip wires worked. He leaned against the trip wires. The machine shut down. The corporate representative of IMS also showed the OHS Investigator the safeguards installed on the other manual lathes. As a result of this demonstration, the OHS Investigator removed the Stop Use order for the Lion Lathe, the Poreba Lathe, and the Nardini Lathe. Subsequently, on November 15, 2019, IMS installed safeguards similar to the other three lathes on the Modern Lathe. The Stop Use Order on the Modern Lathe was lifted by the OHS Investigator.

Exhibit 7, 11, 12, 13 14, 15, 16, represent the actions taken by the Defendant IMS in compliance with the OHS Investigator’s orders, after the death of the worker. [ 19 ] In cross-examination, the OHS Investigator reiterated that there was no barrier in place, prior to the accident, on the Lion Lathe to prevent the worker from coming into contact with the lathe as it operated. The OHS Investigator testified that it is the employer’s responsibility to conduct a hazard assessment, to address the risks of operation of the lathe, with reasonable safeguards. As Mr.

Nandana said in cross-examination, “It is up to the employer to decide the type of safeguards to be employed, after a hazard assessment”. [ 20 ] The Court concludes that there is no evidence of hindsight bias in Mr. Nandana’s testimony. Mr. Nandana followed an objective method of investigation. He explained that his first step was to “find out what happened”. His second step was to apply the provisions of the Statute, the Regulations and the Safety Code to the facts determined by the investigator as to the cause of the accident. In this case, Mr.

Nandana determined as a fact that the worker’s wearing of gloves, while in the process of applying sandpaper to the threads of the workpiece, caused him to be drawn into the lathe when the gloves came into contact with the rotating piece. Mr. Nandana testified that there is no “one magic bullet” to solve the problem of steps which must be taken by the employer to address the issue of worksite safety. A series of reasonable measures must be taken by the employer in order to fulfill its obligations owed to the worker under the statute. In every respect, the Court finds that Mr.

Nandana is a credible and reliable witness with sufficient education and experience to conduct a proper investigation under the Occupational Health and Safety Act . The Court accepts his evidence in its entirety. Alan Devolin [ 21 ] The next Crown witness, Mr. Alan Devolin, was employed by the Calgary Medical Examiner in the capacity of a death investigator to provide facts to the forensic pathologist to determine the cause and manner of the worker’s death. Mr. Devolin attended at the scene of the tragic accident at the worksite on the day of the occurrence.

He took a series of photographs ( Exhibit 18 ), depicting the worksite, the exact place where the deceased worker was found after the accident, the Lion Lathe in which the worker’s body was entangled, and the process of extrication of the worker’s body from the Lion Lathe. Mr. Devolin testified that the deceased was found entangled in the Lion Lathe. One hand, the left hand, had no glove on it. Part of that glove was visible in the workpiece of the Lion Lathe. The right hand of the worker was still gloved. The worker’s hair and clothing were wrapped around the workpiece of the Lion Lathe.

The process of disengagement of the worker’s body was undertaken by special duty members of the Calgary Fire Department in the presence of the representative of the Medical Examiner. The Fire Department began by disengaging the drive mechanism to allow it to spin freely in reverse. In Mr. Devolin’s opinion this assisted in determining the chronology of what had happened in the seconds prior to the worker’s death. He testified that the worker’s clothing and hair came off the Lion Lathe in the same manner and in the same order each to the other as they had entered into the Lion Lathe.

Photographs 26, 31, 42, 43, 46, 49, 52, 53, 56, 59, 61, 63 and 64 all, contained within Exhibit 18, depict the exact process of extraction undertaken by the Fire Department in the presence of the Medical Examiner’s Representative as the body of the deceased was removed from the Lion Lathe. Photograph 56 of Exhibit 18 in particular, shows the unravelling of the deceased’s glove from the workpiece and depicts the piece of emery paper left in the workpiece. Photographs 61, 63 and 64 depict the last item found by the Calgary Fire Department during the extraction process – the emery paper.

Exhibit 18 depicted that the emery paper, used by the deceased while wearing gloves, led to the deceased’s left hand glove being introduced into the lathe as the “first point of contact”.

Katya Ponich [ 22 ] Ms. Ponich was called by the Crown in her capacity as an OHS Investigator. She has qualifications from the BC Institute of Technology in forensic investigation. She is a registered Safety Professional and a Paramedic. She has worked in a number of industries prior to her engagement with Occupational Health and Safety. In her work with OHS she has investigated 340 accidents and 50 fatalities. Ms. Ponich has experience in the operation of machinery and in lathe safety in the course of her career. On all facts material to this case, the evidence of Ms. Ponich agrees with that of Mr. Nandana.

She too was at the scene of the accident on the day of its occurrence. She observed the body of the deceased, folded over at waist height under the workpiece, the manual lathe. There was no chuck guard and no tool guard. Ms. Ponich, together with the representative from the Medical Examiner’s office, personally witnessed the extrication process of the body of Mr. Ubhi from the manual lathe. She agreed that Mr. Ubhi’s coveralls, his hair, fingers from a glove, and emery sandpaper were all wrapped up in the lathe, ( Exhibit 4 photograph 62). Ms. Ponich videotaped the entire extrication of the body of the worker.

She testified that a significant amount of Mr. Ubhi’s coveralls had been pulled into the Lion Lathe. She testified that the underside of the workpiece of the manual lathe exposed a “thick part of the glove” of the deceased. Ms. Ponich commented specifically on photographs 56 and 57 in Exhibit 18 . She testified that it is her finger in the photographs pointing at the emery sandpaper. She tells the Court that the presence of this item in the workpiece of the manual lathe “tells the story”: the worker was using his hand very close to the rotating piece of the manual lathe.

Three fingers of the worker’s glove are underneath and behind the workpiece. Emery sandpaper is wrapped around the workpiece. [ 23 ] Ms. Ponich met with a corporate representative of IMS, Mr. Reid, on the day of the accident. She requested, in her capacity as an OHS Investigator, machine specific and task specific Hazard Assessments for the lathe. She testified that she did not receive any of hazard assessments or any safe work procedures manual from the accused company IMS or its representatives. Ms.

Ponich testified that the Occupational Health and Safety Act requires multiple measures to be taken by the employer to control hazards in the workplace. She testified at length on the statutory requirements to address elimination of the hazards, the engineering of physical barriers to address the hazards, and administrative steps required of the employer, such as establishing safe work procedures, and proper personal protective equipment. These requirements are all incorporated into the legislative scheme of the obligations of the employer. The Defence did not conduct any cross-examination of this witness.

Her evidence is credible, reliable, and accepted by the Court. Ian MacDonald – Crown Expert Witness [ 24 ] Ian MacDonald was qualified by the Court as an expert witness entitled to give opinion evidence with respect to the operation of the manual lathe and required safety standards with respect to operation of the manual lathe. Mr. MacDonald is a Red Seal Machinist with inter-provincial certification. As part of Mr. MacDonald’s provincial and inter-provincial certification achieved in July 1983, Mr.

MacDonald has training and experience with respect to safety protocols and hazard assessments for lathe operation, including the manual lathe. Mr. MacDonald has ISO9001:2008 and ISO9001:2015 certification. Mr. MacDonald has completed all safety training in compliance with federal and provincial legislation. Mr. MacDonald has expertise as an experienced instructor with respect to the commercial operation of manual lathes, CNC lathes and mills.

He has education and work experience with respect to required safety protocols for manual lathes and mills, as well as the proper procedure for hazard assessments, and workplace safety requirements in machine shops, the set up a safety committee, and the role of managers who implement safety protocols in machine shops. Mr. MacDonald is qualified by the Court to give opinion evidence in all of these areas. Mr. MacDonald was the project head with respect to manufacturing initiatives at Pratt and Whitney Canada from 1995-2001. Mr.

MacDonald was the quality manager at Precimax Manufacturing in Alberta from 2017 – 2020. This work required Mr. MacDonald to be ISO certified, to manage the quality systems, to ensure adherence to federal and provincial legislation with respect to workplace safety. In his capacity as a machinist instructor at the Northern Alberta Institute of Technology (NAIT), and at the Southern Alberta Institute of Technology (SAIT), Mr.

MacDonald was responsible for delivering classroom lectures and practical instructions to students with respect to the operation of lathes, lathe safety, hazard assessment, and management’s role in ensuring workplace safety for workers who operate lathes. In

summary, Mr. MacDonald has been working and teaching in the profession of lathe operation including manual and CNC machining, since 1983. [ 25 ] The Court had no hesitation in concluding, after the lengthy voir dire on qualifications that Mr. MacDonald is qualified to give expert opinion evidence as to all aspects of the operation of the manual and CNC lathe including hazards, the process of hazard assessment, the design and implementation of workplace safety initiatives, and identifying the risks inherent in the operation of the manual lathe. [ 26 ] Mr.

MacDonald testified as to the setup of the manual lathe that the deceased was working at, at that the time of his death. Mr. MacDonald readily conceded that even if a chip guard and tool guard had been in place on the manual lathe at the time of the accident, that the presence of the chip guard and the tool guard would not have prevented this tragic death. This is because the deceased worker was doing a different form of work on the lathe, which involves polishing the top of the threads on the workpiece using silicone carbide sandpaper, while he was wearing work gloves. [ 27 ] Mr.

MacDonald opined that the glove worn on the left hand of the deceased worker came into contact with the rotating lathe, which instantly dragged him into the lathe. Following the contact between the deceased worker’s gloved left hand and the lathe, the sleeve of the deceased worker’s coveralls then engaged with the lathe, making it impossible for the worker to disengage his body. Mr. MacDonald testified that Mr. Ubhi had “no chance whatsoever once his workplace coveralls, made of thick cloth, engaged with the lathe”. Mr.

MacDonald explained that the manual lathe operates with “enormous force” which made escape impossible once the worker’s glove touched the lathe. The force of the rotating piece pulled his arm into the lathe and irrevocably engaged the long sleeves of his coveralls in the lathe. [ 28 ] Mr. MacDonald opined that Mr. Ubhi should not have been wearing the work gloves he was wearing while polishing the imperfections on the workpiece nor should Mr. Ubhi have been wearing long sleeved work coveralls.

The act of polishing to remove imperfections from the work while wearing the gloves shown in Exhibit 5 and the overalls with long sleeves shown in Exhibit 5 , is the direct cause of Mr. Ubhi’s tragic death, in Mr. MacDonald’s opinion. It was the employer’s responsibility to ensure that the worker was

properly outfitted with work attire, suitable for work on the manual lathe. [ 29 ] Mr. MacDonald further opined that IMS as the employer, should have addressed engineering controls to be placed between the worker and the rotating workpiece which would bring the lathe to a stop before the worker’s body was fully engaged and drawn into the manual lathe. Mr. MacDonald was clear to say that upon close observation of Exhibit 5 it shows that Mr.

Ubhi did not fall into the lathe, rather he was pulled in by the lathe when a part of his body came into contact with the work piece that he was endeavouring to polish on the lathe. [ 30 ] Exhibit 5 depicts the deceased placing his arm across the workpiece and in behind. This is dangerous in the opinion of Mr. MacDonald. At all times the worker must stay in front of the workpiece and must not reach across the workpiece to do any activity such as polishing. Mr. MacDonald explained Exhibit 5 in detail. Mr.

MacDonald drew the Court’s attention in particular to the worker’s right arm draped over the workpiece and into the back of the workpiece. Mr. MacDonald was asked what engineering steps should have been taken by the employer to reduce the risk of the worker being pulled into the moving parts of the lathe. In particular, Mr. MacDonald was asked about the effectiveness of the use of the trip wire system which if touched by the worker would stop the operation of the lathe. The Crown asked Mr. MacDonald for his opinion as to the engineering effectiveness of the trip wire system. Mr.

MacDonald advised that in his opinion the presence of trip wire would “reduce the risk”. While the worker might have been injured, when his glove came into contact with the lathe, the trip wire would have prevented his death. The Crown further asked how the trip wire would have reduced the risk. Mr. MacDonald opined that the presence of the trip wire would have operated to keep Mr. Ubhi from putting his arm over the workpiece as he polished. Mr. MacDonald opined that the trip wire does slow the worker down in his movements. [ 31 ] The Crown asked Mr.

MacDonald for his opinion about the emergency stop button that was in place at the time of the accident as shown in Exhibit 4 photograph 46. Mr. MacDonald explained that the emergency stop button cuts all power to the lathe. However, in this case, the emergency stop button was of no use as, in Mr. MacDonald’s opinion, Mr. Ubhi was too far away to ever engage the emergency stop when his glove and work sleeve came into contact with the lathe. [ 32 ] In Mr.

MacDonald’s opinion, the trip wire system which is an engineering control that could have been installed on the manual lathes at IMS, would reduce the risk although not entirely eliminate risk. Mr. MacDonald opined that the employer should have addressed administrative controls in the workplace. Administrative controls include, work safety training, hazard assessments, and appropriate personal protective clothing. [ 33 ] Mr. MacDonald was asked for his opinion concerning the lack of any evidence of IMS undertaking a formal hazard assessment of the workplace before the accident. Mr.

MacDonald was asked his opinion as to how the lack of a hazard assessment by IMS influenced the eventual outcome on the day of the accident. Mr. MacDonald replied that “it is a strong factor in the incident”. In Mr. MacDonald’s opinion the lack of worker training, and the lack of proof of certification, was a strong contributor to the accident. The deceased was not qualified as a Red Seal Machinist. The worker had experience of a practical nature, in Kenya and then practical experience in Canada. No one at IMS knew the extent of the practical experience of Mr.

Ubhi as a lathe machinist, except through oral information provided by the worker. [ 34 ] The Court finds that Mr. MacDonald was fair and objective throughout his testimony. He answered the questions of counsel with patience and objectivity. The Court did not see Mr. MacDonald taking a position or acting as an advocate for a particular viewpoint. Rather, Mr. MacDonald testified with objectivity, preparation, experience, and credible reliable testimony. For example, Mr.

MacDonald conceded that at SAIT when he was teaching as an instructor, in the machinist course, there were no chuck guards on the lathe provided in the teaching environment. The teaching environment was under the control of SAIT. Mr. MacDonald told the Court that he does not know why this was the case. Mr. MacDonald also conceded that in the industry of the machinist in Alberta, manual lathes are often operated in the absence of the tool post-guard. In practical terms, Mr. MacDonald said, this happens “quite often”. Mr.

MacDonald also agreed with Defence that the warning signs that were posted on the manual lathe of IMS, can be an administrative control to reduce risk. [ 35 ] Mr. MacDonald was asked a number of complex questions about the role of the emery cloth utilized by the worker. Mr. MacDonald testified that in this case, the emery cloth used by the worker caught and wrapped right around the rotating workpiece on the manual lathe. Defence counsel asked a series of extensive questions about alternate methods for polishing the workpiece that Mr. Ubhi was working on.

Defence counsel suggested that prior to the use of the emery cloth, Mr. Ubhi was utilizing files to file the workpiece. Mr. MacDonald explained to the Court that even if a file is being used on the workpiece to correct imperfections on the threads, the worker must never place the file over the centre of the work. [ 36 ] In cross-examination, Mr. MacDonald provided further relevant evidence to the Court with respect to machinist work in Alberta. He explained to the Court, that in Alberta there is a lot of re-work on workpieces such as those that Mr. Ubhi was working on at the time of his death.

This is so because of the extensive requirements for this type of work in the oil and gas industry. Mr. MacDonald agreed with Defence that the manual lathe is particularly suited to the type of re-work that is done in Alberta in connection with the requirements of the oil and gas industry. [ 37 ] Mr. MacDonald testified that in addition to the manual lathe there is the CNC lathe. Mr. MacDonald explained that CNC lathe is becoming very adaptable to “one off work” as the CNC lathe can actually read the drawings from which the work needs to be undertaken.

The CNC lathe represents a much safer type of lathe, as there is no risk of unintentional contact between the worker and the lathe. [ 38 ] At one point in his cross-examination, Mr. MacDonald was asked if he had ever seen the Lion Lathe that Mr. Ubhi was actually using on the worksite on the day in question. Mr. MacDonald agreed that he had not attended at the IMS workplace. In the Court’s view this is irrelevant as Mr. MacDonald has decades of experience with the manual lathe and the Lion Lathe in his capacity of a machinist instructor. [ 39 ] Mr.

MacDonald provided relevant evidence with respect to the history of the manual lathe and its use in Canada. Mr.

MacDonald agreed with the Defence that in Canada machining is not a certified trade. The system of training on the lathe giving rise to the Red Seal designation is based on the system of training developed in the United Kingdom. In the United Kingdom, a machinist training, on a manual lathe, is subject to supervision by a journeyman supervisor. A journeyman supervisor in the UK has certification. [ 40 ] Mr. MacDonald provided opinion evidence in connection with the process of reducing the risk profile for the manual lathe. Mr.

MacDonald explained that this is a combination of education, practical experience properly supervised, employer hazard assessment, employer engineering, and administrative controls. [ 41 ] In reference to administrative controls, with particular comment on the type of workplace clothing being worn by Mr. Ubhi, Mr. MacDonald was of the opinion that the worker was “not wearing appropriate equipment”. The safety measurements that should have been taken by the employer, in the opinion of Mr.

MacDonald with respect to the worker’s clothing, would have included the requirement for clothing adhering closely to the body, a uniform with no sleeves, no rings or watches, and attention to the tying of hair away from the face. Evidence of Defence [ 42 ] The Defence called four witnesses in reply to the Crown’s case. The Defence did not call expert opinion evidence. Timothy Reid [ 43 ] Mr. Reid is a majority shareholder and director of IMS. He owns 80% of the shares of IMS. Mr. Reid is a journeyman machinist with Red Seal designation.

He has experience on CNC machines, but, “very little experience” on the manual lathe. The current shop operated by IMS was acquired in 2010. The manual lathes were “a small component” of the IMS business. Mr. Reid testified that the deceased became employed as an employee of the company when he walked in and asked if there was work available. Mr. Reid asked the deceased to demonstrate his skills on the lathe. Mr. Reid testified that after the demonstration, “we could tell he knew what he was doing”. Mr. Reid explained that Mr. Ubhi did not have Red Seal certification.

He explained that “a lot of the guys we hire are trained overseas”. Mr. Reid testified that Mr. Ubhi was “the manual guy” (meaning that he operated the manual lathe at the premises of IMS). Mr. Reid’s partner supervised the deceased for three to six months after he was hired. At the time of hiring there was an orientation to the workshop premises. Mr. Reid did not explain to the Court what that orientation entailed. Mr. Reid agreed that the manual lathe being utilized by the deceased, did not have a tool guard in place at the time of the accident. Mr.

Reid explained to the Court that the tool guard gets marked with scratches from chips which makes it “hard to see”. Mr. Reid said that this tendency led to the decision to remove the guard prior to the accident. Mr. Reid justified his decision to remove the tool guard based on his own training as a machinist at SAIT. He informed the Court that there are no “chuck guards on these machines at SAIT”. Mr.

Reid made a spontaneous declaration to the Court that he felt it “ridiculous” that SAIT trained its students without guards over the machines, yet the OHS legislation required that his business have safeguards in place for its lathes. [ 44 ] Mr. Reid admitted that the company had no formal confirmation of Mr. Ubhi’s training as a machinist. He informed the Court “All we knew is what he told us”. Mr. Reid believes that Mr. Ubhi operated a manual lathe in Kenya where he undertook procedures involving everything from “soup to nuts”. [ 45 ] Mr.

Reid also admitted that the work supervision by IMS at the beginning of the deceased’s employment is oral. He said to the Court, “its not written down stuff”. Mr. Reid also complained that there was nothing by way of newsletters from OHS informing his industry of similar accidents with the manual lathe. He did concede he had heard of one case in an informal way but not through an OHS representative. [ 46 ] Mr. Reid conceded that no formal steps were taken by IMS to test the safety of the physical alignment of the lathe on the workshop floor. He also agreed that lathes were added ad hoc from time to time. Mr.

Reid conceded that he had never operated the manual lathe that the deceased was operating. Mr. Reid disagreed that other types of safeguards such as a trip wire would have been reasonable steps to take to protect the worker. Mr. Reid informed the Court that, “trip wires are in the way”. Mr. Reid informed the Court that trip wires actually make the manual lathe “less safe”. Mr. Reid defended his decision not to install trip wires prior to the accident as he had never seen “trip wires on any lathe”. Mr. Reid took the Court through his observations of the activities of the deceased as shown on Exhibit 5 . Mr.

Reid utilized a particular type of software to zoom in on the activities of the deceased worker as reflected in Exhibit 5 . He agreed that the zoom in function allowed him to see the deceased at the manual lathe utilizing a flashlight to see if the thread had been engaged on the workpiece. The zoom allowed Mr. Reid to say that he saw Mr. Ubhi cut the thread on the workpiece followed by utilization of a file and then finally an emery cloth. Mr. Reid agreed that at the time of his death the deceased was wearing work gloves while utilizing the manual lathe.

He testified that his partner had previously informed the deceased not to wear gloves while operating the manual lathe with the rotating workpieces. Mr. Reid informed the Court that the layout of the lathe as show in Exhibit 5 is the “typical layout of a machine shop”. He informed the Court that as far as he was aware the deceased was “happy with the way it was laid out”. On several occasions during his testimony-in-chief, Mr. Reid agreed that the workpiece on the manual lathe is the hazard.

He informed the Court that he had not personally seen any device for the manual lathe to protect the worker from the rotating workpiece. [ 47 ] In cross-examination, Mr. Reid agreed that IMS employed Mr. Ubhi without a resume or evidence of formal training. Mr. Reid, however, believed that the deceased had expensive practical training in Kenya. Mr. Reid saw no need for the company to engage in further training. He said that any refreshers on safety protocol were informal in nature. Mr. Reid further conceded that the machinists in his shop wore “whatever suits them”.

He explained to the Court that some of the machinists wore coveralls, and some work smocks. Mr. Reid said that he had never seen short sleeved coveralls. Mr. Reid, in cross-examination, conceded that there was no personal knowledge on his part as to the orientation training given by IMS to employees. He simply trusted that his partner at IMS would review with the deceased, “what he should know”.

[ 48 ] In cross-examination, Mr. Reid conceded that the manual lathe being utilized by the deceased, had originally arrived in the shop with a tool guard, however, IMS removed it. Mr. Reid conceded that after the death of Mr. Ubhi, all floor lathes in the machine shop were fitted with tool guards, in compliance with OHS Investigation orders. Mr. Reid was asked a very interesting question in cross- examination; whether he had ever considered engaging an engineer to design a safeguard for the manual lathe to prevent the worker from coming into contact with the workpiece. Mr.

Reid said that his partner had talked to an engineer but the company IMS, “did not go down that path”. Instead, Mr. Reid explained, he relied on the competence of the machinist in connection with safe operation of the manual lathe. Mr. Reid explained to the Court that his employees, the machinists, “don’t work for us, we work with them”. Mr. Reid conceded in cross-examination that the company IMS had never undertaken a hazard assessment of the workplace either in writing or oral basis since they had moved into the premises in 2010.

He explained that the company just brought the equipment in and had an electrician connect them. Mr. Reid also conceded in cross-examination the company had no formal safety manual prior to the accident. He admitted that procedures were “rudimentary”. Mr. Reid conceded that after the death of the worker, his company engaged a safety professional to create a written job hazard assessment and a separate company to create a written safety manual. Mr.

Reid finally conceded he had never personally read the manufacturers written manual with respect to procedures for operating the manual lathe. [ 49 ] The Crown put to Mr. Reid the conclusion that IMS had no reasonable administrative controls or training for its employee, the deceased, with respect to the operation of the manual lathe. In reply, Mr. Reid said to the Court, “I disagree”, “I categorically deny that”, “It’s quite frankly insulting”. Avinesh Nair [ 50 ] Mr. Reid owns 80% of the issues shares of IMS. The witness Avinesh Nair owns 20% of the issued shares of IMS. Mr. Nair is a journeyman machinist.

He holds a Red Seal. He was trained at SAIT. He joined IMS in 1994. Mr. Reid does the business aspect of management of the company and Mr. Nair is the supervisor and worker on the floor of the lathe workshop. Mr. Nair was the first person to meet the deceased when he came into the shop asking if there was work available. Mr. Nair did not receive a resume from the deceased; however, he did question the deceased carefully about the operation of the lathe, the process of working on the lathe. Mr. Nair was satisfied, and the deceased was hired. Mr.

Nair testified that the manufacturers manual with respect to the manual lathe, was kept by the lathe and according to Mr. Nair it was used “very often”. The manufacturer’s manual is Exhibit 21 . Mr. Nair described the deceased as an efficient, steady worker. Mr. Nair was asked about the hazards of the manual lathe. He responded: “the biggest thing is the chuck”. Mr. Nair agreed that he saw the deceased wearing gloves while operating the manual lathe and he says that he told the deceased on two occasions not to wear gloves while operating the lathe.

This was one year and six months respectively before the accident. Mr. Nair was asked by his counsel as to whether a hazard assessment was completed and communicated to the worker, the deceased, by the company. Mr. Nair responded that he and the deceased would “talk about it frequently”. These were oral discussions. There was no written hazard assessment. The Court does not know the content of these oral discussions other than the fact that the witness says they occurred. [ 51 ] Mr. Nair agreed with the testimony of Mr.

Reid that after the accident, a formal hazard assessment was undertaken by a third party under the direction of IMS. Mr. Nair agrees that after the accident safeguards were installed on the lathe – a chuck guard, tool guard, and a trip guard. In cross-examination, Mr. Nair admitted that sometimes he and the worker would “figure out a hazard when you operate a machine”. For example, Mr. Nair talked about the hazard of chips flying from the machine. When this happened, Mr. Nair said, the workers learned “to control it”. Mr.

Nair was asked in cross-examination if he understood the component steps of a risk assessment undertaken during the course of a hazard assessment with respect to the lathe. Mr. Nair responded that he did not know “off the top of my head the chief components of the risk assessment”. Mr. Nair also admitted that he did not know how to calculate the level of seriousness of an identified risk. When he was asked in cross-examination how he would calculate the seriousness of a certain identified risk, he responded “I can’t give you that”. Mr.

Nair, however, was aware that there was a risk associated with the wearing of gloves while operating the manual lathe. He agreed in cross-examination that when he was trained at SAIT he was instructed that gloves are not to be worn during the operation of the lathe. [ 52 ] In cross-examination Mr. Nair was asked a series of questions about steps taken after the accident with respect to the installation of trip wires. He told the Court that he discovered the existence of trip wire systems after the accident, from his examination of an old lathe from Quebec. Mr.

Nair testified that he showed this trip wire system to the OHS Inspector after the accident. However, he did not inform the OHS Inspector that in his opinion the trip wire was not a reasonable safeguard as the lathe would continue rotating after a touch in the course of use. Mr. Nair said that the reason he showed the OHS Inspector the trip wires was to satisfy OHS’s concerns after the accident so that he could “get my business up and running”. Mr. Nair was firm in his personal belief that the trip wire system was not a reasonable safeguard. Zeljko Volasevic [ 53 ] Mr.

Volasevic is a tool die maker called by the Defence. He has Red Seal qualifications. A tool die maker is a level up from a machinist. Prior to becoming a tool die maker, Mr. Volasevic was a machinist trained in Bosnia. He challenged the tool and die course on arrival in Alberta and passed the test. He has his ticket and certificate issued by SAIT. Mr. Volasevic is trained in the operation of the manual lathe. Mr. Volasevic is engaged in the selling of lathes as required by machine shops throughout Alberta and British Columbia. Mr.

Volasevic in his capacity as a salesperson of lathes, has visited over 100 machine shops. Mr. Volasevic was given the opportunity to comment on the trip wire system as a safeguard for the manual lathe. Mr. Volasevic testified that “I wouldn’t feel safe with trip wire”. He explained that chips can fly around the wire and the trip wire could also “damage the thread”. Mr. Volasevic explained that as a machinist, he is familiar with the use of emery cloth and the process for using emery cloth during the operation of a manual lathe. Mr.

Volasevic was worried that if a trip wire is present on a manual lathe, it could shut the machine down in the middle of a cut. Mr. Volasevic did not feel comfortable with the use of the trip wire. However, Mr. Volasevic was careful to say that he is not a safety expert. He is speaking about the trip wire on a practical basis as he undertakes his work as a machinist operating a manual lathe. Mr. Volasevic was not qualified as an expert witness by the Defence.

Brad Kessler [ 54 ] Mr. Kessler was called by the Defence. He too is a salesperson employed at Modern Tools importing and selling lathes. Mr. Kessler is familiar with the Lion Lathe that was the subject matter of this accident. In fact, he says the actual Lion Lathe involved in the death of Mr. Ubhi, is presently for sale in his shop at Modern Tools. Mr. Kessler is an experienced salespersons and has visited machine shops through out southern Alberta, British Columbia and Saskatchewan. He testified that from a practical perspective, his customers in Western Canada do not ask for safeguards. The reason, said Mr.

Kessler, is that most operators do not like these guards on the lathe as the “get in the way”, can lead to the stop of the lathe, and ruin the part that is being worked on. There are concerns with respect to productivity impact if the safeguards are in place. Mr. Kessler is not a machinist. He is a salesperson familiar with the importing and sale of lathes. He has no qualification to operate a lathe. He is familiar with the use of emery cloth in machine shops but has not “paid close attention” to its use in machine shops. Mr. Kessler said that he ran an ad hoc test with respect to trip wire after the accident.

He operated the lathe at 500 rpms, engaged the trip wire, and told the Court that it takes “seven seconds” to stop the rotation. Mr. Kessler said to the Court that a lathe cannot be stopped instantly as the lathe would flip over. Mr. Kessler was not qualified to give any opinion evidence with respect to the operation of the lathe. The Court does not place any weight on his viewpoint with respect to the operation of the trip wire system. Mr. Kessler testified that the only manufacturer safety recommendation, in his view, is the “emergency stop”. He told the Court, “Everything else is up to the operator”.

The Court does not place any weight on Mr. Kessler’s personal viewpoint. His experience is only that of a sales person. Findings of Fact [ 55 ] Arising from the evidence presented in this trial from both the Crown and Defence the Court makes the following findings of fact: 1. At all material times Inland Machining Services Ltd. (IMS) was the employer pursuant to the Occupational Health and Safety Act of Alberta . 2. The deceased, Mr. Ubhi, was a worker engaged in the work of IMS in the capacity of manual lathe operator. 3. At the time of his death, Mr.

Ubhi, was operating a manual lathe, known as a European Lion Lathe, owned by IMS. 4. The European Lion Lathe a manual lathe, is inherently dangerous equipment, capable of causing injury or death to a worker, unless reasonable practical steps are taken by an employer to install and maintain engineering safeguards to reduce the risk of an employee worker coming into contact with the moving parts of the manual lathe. 5. Electrically Interlocked Trip Wire systems as a safeguard for the manual lathe are in use in Canada but, at the time of the accident, were not in widespread use in Alberta. 6.

Prior to the accident IMS did not have in place any reasonable administrative procedures to reduce the risk of accidental injury or death to workers utilizing the manual lathe including, there were no formal hazard assessments of risks in the workplace, associated with the manual lathe. There were no formal safe work procedures for employees who operate manual lathes, including training and competency assessments for workers in IMS employment who were operating inherently dangerous equipment, the manual lathe, prior to the accident. 7.

IMS did not maintain any safety orientation records, training certificates or records of competency, for its employees including Mr. Ubhi, the deceased worker. 8. IMS did not take reasonable practical steps in the workplace to ensure that its workers were properly outfitted with personal protective equipment suitable for working on the manual lathe. 9. IMS failed to have in place reasonable procedures for monitoring worker compliance with safe work procedures with respect to the operation of the manual lathe. 10.

As a direct consequence of the absence of any reasonably practical engineering safeguards, the Lion Lathe, the property of IMS, did not safely perform the function for which it was designed. 11. The manufacturer’s service manual for the Lion Lathe ( Exhibit 21 ) which was located on the premises of IMS at the time of the accident, clearly outlined the importance of physical guards between the worker and the moving parts of the manual lathe. 12.

There are, Canada wide, industry safety standards, CSA Z432-16, which would apply to the operation of the manual lathe, which include pressure sensitive protective devices, tool guards, chip guards, front guards, chuck guards, as the material components of the safe operation of equipment such as the manual lathe. 13. At all material times, Mr. Ubhi was operating the manual lathe for the purpose for which it was designed or intended, the manufacture of special metal parts or components, by reworking or polishing the threads of a workpiece required by a customer of IMS in the oil and gas industry in Alberta. 14.

At the time of the accident, there were no engineering controls or physical safeguards installed or maintained by IMS on any of the lathes located on the premises. 15. Prior to the accident, a shareholder and director of IMS had considered retaining a professional engineer to advise as to engineering controls for safe lathe operation however, IMS did not pursue that course of action.

The Manual Lathe [56] The manual lathe has existed for centuries. The lathe is a precision turning machine consisting of a headstock and base thathouses one or more spindles on which a work holding device (chuck) can drive the stock and the cutting tools to remove metal,producing mainly cylindrical and conical shapes. It is a fact that severe injuries and death to workers who operate the manual lathe, as aresult of from being caught in, or struck by rotating parts.

An operator can be pulled into the lathe as a result of working too close suchas polishing with an emery cloth, or by wearing gloves, loose clothing, jewelry, or having loose hair. There are trapping spaces in themanual lathe by virtue of its construction, between the cutting tool, its mounting, and the work piece or chuck. The manual lathe, byvirtue of its construction, which includes rotating parts of the machine, creates nip points that can grip clothing, jewelry, appendages(hands, arms, feet, and legs), hair and other dangling objects.

The items that are gripped by the rotating part of the lathe can cause aworker to be dragged into the lathe causing injury or death. It is a fact that in order to protect employees from coming into contact withthe moving parts of the lathe that physical safeguards need to be in place. The safeguard, in the form of a physical barrier, can act tophysically prevent an employee from reaching around, over, under and through the guard to the danger area of the lathe.

If an employeeis accessing the danger area of the manual lathe, the rotating parts, a barrier guard can be interlocked with the control systems whichoperate the lathe. [57] The foregoing statements are findings of fact as to the nature of the manual lathe, arising from testimony of Crown andDefence witnesses. [58] As previously stated in this decision, OHSA is a public welfare offence “falling squarely within the second category definedin R v Sault Ste. Marie, (SCC), [1978] CarswellOnt 24 –strict liability.

Occupational Health and Safety legislation is atextbook example of public welfare legislation. (R v Precision Diversified Oilfield Services Corp., 2018 ABCA 273.) Modernworkplaces require Government to legislate standards of health and safety in the workplace, as such regulatory activity is essential, in thepublic interest to ensure a standard of conduct, performance, and liability by employers in the workplace. (R v Independent AutomaticSprinkler Ltd., 2009 ABQB 264).

Where an employer, in a position of IMS, is in a position to control workplace processes and activitiesthen, in order establish due diligence on a balance of probabilities, the employer must demonstrate that it exercised reasonable care byestablishing “a proper system to prevent commission of the specific offence and by taking reasonable steps to ensure the effectiveoperation of the system”, R v Sault Ste. Marie supra at paragraph 72. Employee misconduct does not impact the actus reus of theoffence at least in context of the employee performing the work required in the workplace.

IMS can be held strictly liable if it failed tocomply with its obligations set by Statute and regulation even if there is an element of employee misconduct such as wearing improperwork attire. R v Dofasco Inc., 2007 ONCA 769. [59] The philosophy of leadership as evidenced in the testimony of the Directors of IMS, clearly outlined the attitude of IMStowards its employees’ activities in the workplace. The workplace philosophy at IMS was laissez faire. The term laissez faire translatedfrom French, is to let people do as they choose.

This style of leadership provides the highest-level of autonomy to the employees tomake their own decisions and manage their own workplace. The fact that IMS adopted a laissez faire style of leadership is evidencedthrough the testimony of the majority shareholder and Director of IMS, Timothy Reid. Mr. Reid and the company IMS did not requireany formal proof of Mr. Ubhi’s training as a machinist prior to his commencement of employment. The company instead relied on whatMr. Ubhi told the company. Mr. Reid expressly stated during the course of his examination-in-chief: “all we knew is what he told us”.

Further evidence of management laissez faire approach to the workplace emerges when Mr. Reid testified that the employees of IMS, themachinists, “don’t work for us, we work with them”. [60] The laissez faire attitude of IMS management included an admission during the course of Mr. Reid’s testimony that thecompany did not proceed to obtain engineering advice as to safeguard design for the manual lathe, even though they had contemplated itbefore the accident. Further, Mr. Reid conceded that IMS did not undertake any hazard assessment of the workplace to assess risk of themanual lathes.

There was nothing in writing, there was nothing oral with respect to any hazard assessment at the workplace prior to thisaccident. To further exemplify this laissez faire approach to management, IMS and its directors did not establish any formal safetyprocedures, print any safety manual for employees, or document any safety meetings. Mr. Reid, in testimony, admitted that safetyprotocols undertaken by his company, IMS, prior to the accident were “rudimentary”. The laissez faire approach to the management ofthe workplace extended into Mr.

Reid’s admission during the course of his testimony that he had never personally read themanufacturer’s written manual posted for employees with respect to procedures for operating the manual lathe owned by IMS. In short,despite Mr. Reid’s categoric denial at the conclusion of his testimony when it was suggested that IMS had no reasonable administrativecontrols or training for its employees; it is clear the Mr. Reid’s evidence established precisely the opposite, on a balance of probabilities. IMS abandoned responsibility, and control of the workplace, to its employees.

The Actus Reus Count 1 [61] It is a fact that Mr. Ubhi was engaged in the work of IMS, his employer, at the time of his death. It is a fact that the IMSManual Lathe in the manner of its set up and operation, presented not only an unsafe condition, but a dangerous condition to the workerwho sought to polish a workpiece on the manual lathe with the use of emery cloth. [62] What reasonable practical steps could IMS have taken prior to the accident to address the unsafe inherently dangerousconditions of the manual lathe utilized by Mr. Ubhi?

The answer to this question is much simpler than the oral and written submissionsof the Crown and Defence would suggest. In fact, IMS itself knew what reasonable practical steps it should have taken prior to theaccident. IMS made the express decision not to engage the services of a professional engineer to help guide the design of safeguards forthe manual lathe.

While the Court agrees with the Defence submission that IMS did not have to leap to the conclusion that it shouldinstall an electronic interlocking trip wire system, there were at least six other reasonable practical steps that IMS could have taken infulfillment of its duties as an employer. The Court finds that it was reasonably foreseeable that the following reasonable practical steps

could have been undertaken to eliminate or reduce the risk of injury or death to workers: 1. IMS should have retained an engineer to provide advice and direction with respect to engineering controls to address the inherent danger presented to workers by operation of the manual lathe and in particular the danger of coming in close proximity to the rotating workpiece through attempts to polish or finish the workpiece. 2. IMS should have engaged assistance from workplace safety professionals to design effective safety protocols to be implemented in the workplace for all workers working on the manual lathe. 3.

IMS should have published a safety manual for its workers who were working on the manual lathe utilizing the advice of a workplace safety professional. 4. IMS should have required employees to provide some reasonable documentary proof of their qualifications prior to employment and some reasonable evidence of training or experience on the manual lathe. This information should have been recorded by IMS and kept in employee records. 5.

IMS should have engaged in regular safety meetings with its employees which were documented in which employees were advised of the safety procedures, in which employees were permitted to ask questions and express concerns with respect to safety procedures, and which the company ensured that the employees understood safety procedures with respect to work on the manual lathe. 6.

As part of its duty to take reasonable steps to equip its workers to do the work on the manual lathe, IMS should have obtained advice from workplace safety professionals with respect to proper workplace attire and personal protective equipment. IMS should have communicated that advice to its employees and ensured it regularly monitored employees at reasonable intervals, for compliance.

Monitoring of employees’ compliance with work place attire should have been recorded by the company. [ 63 ] It is proved by the Crown beyond a reasonable doubt that the failure to take the foregoing reasonable practical steps prior to the accident was the cause in fact of the death of Mr. Ubhi, the deceased worker. The Crown have proved the actus reus on Count 1 of the Information beyond a reasonable doubt.

Specific Duties [ 64 ] With respect to the specific duty offences, Count 9, 10, 11, 12, 24, 27, 28, 29, 30, 31, 32, and 33; the Crown proves the actus reus , beyond a reasonable doubt the failure to implement the required safety measures set forth in these counts. There is no requirement for the Crown to prove a causal link between a breach of the specific duty counts and the actual accident. If the Crown proves the absence of the required safety measures beyond a reasonable doubt that is proof of the actus reus for the specific duty offences set forth in the Information.

The issue of reasonable foreseeability is not a relevant consideration for these specific duty counts in the Information because the Statute itself deems the specific hazard identified in the specific duty counts to be foreseeable. R v Kal Tire , 2020 ABCA 200 . It is the Court’s conclusion that all of the failures alleged in count 9, 10, 11, 12, 24, 27, 28, 29, 30, 31, 32 and 33 are established beyond a reasonable doubt in the proof by the Crown of the failure of IMS to take reasonable and practical steps to protect its workers from being injured.

Because IMS did not engage the services of an engineer to guide and advise it with respect to designing engineering controls, the manual lathe did not safely perform the function for which it was intended as alleged in counts 9, 10, 11 and 12 of the Information. Similarly, because IMS failed to take reasonable practical steps as set out in paragraph 62 of this decision, the Crown proved the actus reus in counts 24, 27, 28, 29, 30, 31, 32 and 33 of the Information.

There were no steps taken at all, let alone reasonable practical steps, to obtain professional engineering advice with respect to safeguards, or engineering controls on any of the manual lathes. The Crown has proved the actus reus beyond a reasonable doubt on the counts 24, 27, 28, 29, 30, 31, 32 and 33. [ 65 ] The Court dismisses count 13. The defects alleged in count 13 would only become obvious if IMS had taken reasonable practical steps to retain engineering advice, workplace safety advice, and implement that advice. Mr.

Reid did not know anything about manual lathes, even though he owned 80% of the shares of IMS. He chose to remain uninformed and uneducated. His ‘eyes closed’ attitude which is at odds with his Statutory duties under the Act, is the reason why he did not understand the defects. Nevertheless, the Defendant is acquitted on count 13. The Due Diligence Defence [ 66 ] There is nothing in the testimony of any of the witnesses who testified for the Defence which establishes on a balance of probabilities, due diligence. Mr. Reid admitted that he did not know anything about the operation of the manual lathe.

The company, IMS, assumed a laissez faire approach to safety in the workplace in direct contradiction to the Statutory requirements of the Act. IMS did not maintain written records with respect to Mr. Ubhi’s experience and qualifications, did not retain the engineer to provide engineering advice with respect to engineering controls for the manual lathe, was content to rely on the employees to manage their own affairs day- to-day in their work on the lathe.

IMS did not undertake any steps to inquire as to whether there was any reasonable engineering control for the manual lathe to protect the worker from the rotating workpiece. There was no formal training program, there were no formal safety protocols in place. Mr. Reid conceded that machinists who came to work for IMS wore “whatever suits them”. Procedures with respect to safety were, by Mr. Reid’s own words, “rudimentary”. It is highly relevant to note that after the death of Mr. Ubhi, IMS finally changed its approach to laissez faire management.

IMS engaged a safety professional to create a written job hazard assessment, and a separate company to create a written safety manual. Further, there is nothing in the evidence of Avinesh Nair which establishes due diligence on behalf of the company. Mr. Nair admitted that procedures with respect to hazards were ad hoc. He told the Court that sometimes he and the worker would “figure out hazards when you operate a machine”. Mr. Nair further testified that certain hazards such as chips flying from the machine were recognized but he left it to the workers “to control it”. Mr.

Nair understood absolutely nothing about a risk assessment, a hazard assessment, chief components of a risk assessment or the steps for calculating the level of seriousness of identified risks. When Mr. Nair was cross-examined as to how he would have calculated the seriousness of identified risks

in his workplace, he responded “I can’t give you that”. At best, Mr. Nair possessed ad hoc knowledge which the Court cannot rely on as proof of anything approaching due diligence. [ 67 ] The evidence of the directors of IMS satisfies the Court that IMS was not as concerned with due diligence as it was with the profitability of its business and the speed with which its employees completed their work. Both directors expressed the viewpoint that safeguards can slow down the worker.

This evidence was repeated by another Defence witness, Brad Kessler, who testified that operators do not like safeguards on the lathe as they “get in the way”, “lead to stop of the lathe” and they damage the workpiece. Mr. Kessler, like the Directors, expressed the lay viewpoint that there was a negative impact by the implementation of safeguards on employee productivity.

The defendant has not established the defence of due diligence on a balance of probabilities. [ 68 ] In fact, the defendants are convicted not only by the testimony of the Crown witnesses, but also by their own admissions as they testified in defence. [ 69 ] The Defendants are convicted on all counts, save and except count 13. [ 70 ] The Defendants are acquitted on count 13. Dated at the City of Calgary, Alberta this 14 th day of June, 2023. H.A. Lamoureux A Justice of the Alberta Court of Justice Appearances: H. Kruger for the Crown M. Smith for the Accused