Ontario (Ministry of Labour) v. Stratford Chick Hatchery Ltd., 2011 ONCJ 892

Citation: Ontario (Ministry of Labour) v. Stratford Chick Hatchery Ltd., 2011 ONCJ 892 R. (Ministry of Labour) v. Stratford Chick Hatchery Ltd. Provincial Offences Court, Haldimand County Court, File #100062 D. M. MacDonald, J.P. Heard: January 10, 2011, Judgment: April 27, 2011 Counsel for the Crown: A. Gordon-Fagan Counsel for the Defence: N. J. Smitheman; A. Di Domenico Charge: Failing, as an employer, to take every precaution reasonable in the circumstances for the protection of a worker in a workplacelocated at 3 Hawke Street, Nanticoke, Ontario, contrary to s. 25(2)(

h) of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1. Date of Alleged Offence: June 24, 2009. Particulars: The Defendant failed to take the reasonable precaution of ensuring that adequate access and/or egress was provided for atransport storage trailer. D.M. MacDonald, J.P., (Orally): ……………………………………………………………. CASES CONSIDERED Miller v. Minister of Pensions [1947] 2 All ER 372, KBD Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769 , [2007] O.J. No. 4339, OCA Ontario (Ministry of Labour) v. Hamilton (City), (ON CA), [2002] O.J. No. 283, OCA R. v. Aurora Quarrying Ltd., [2001] O.J.

No. 3296, OCJ R. v. Brampton Brick Ltd., [2004] O.J. No. 3025, OCA R. v. British Columbia Hydro and Power Authority, (BC SC), [1997] B.C.J. No. 1744, BCSC R. v. London (City), [1999] O.J. No. 4461, OCJ R. v. Ontario Food Terminal Board, 2004 ONCJ 219 , [2004] O.J. No. 4075, OCJ R. v. Seeley & Arnill Aggregates Ltd., [1993] O.J. No. 443, OCJ, Gen. Div. R. v. Sault Ste. Marie (City), (SCC), [1978] S.C.J. No. 59, SCC R. v. Spanway Buildings Limited, [1986], Unreported, OPC, Crim. Div. R. v. Sunshine Village Corp., [2010] A.J. No. 869, ABQB

R. v. Stelco Incorporated, [1989] OPC R. v. Z-H Paper Products Limited, [1979] OHCJ, Div. Crt. R. v. Zambri, [1988] unreported, OCJ, Crim. Div. Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] S.C.J. No. 2, SCC THE TRIAL 1 On the trial date of January 10, 2011, David Mason, testified that as of the date of the alleged incident on June 24, 2009, he hadcarried out the duties of an inspector for the Ontario Ministry of Labour for approximately four years, and was also a farm inspector forapproximately three years, in the counties of Haldimand and Norfolk.

He testified that these duties consisted of performingapproximately two hundred inspections and investigations per year. He testified that on June 26, 2009, he had been advised by theOntario Ministry of Labour that an accident had taken place at the Defendant’s workplace located in Haldimand County on June 24,2009. He had been advised that a female worker had fractured her leg.

He testified that he contacted one of the Defendant’s humanresources representatives by telephone on June 26, 2009, and requested that she complete a Ministry of Labour “Form 7”, which is anemployer’s report regarding an injury or disease, and that she fax a completed copy of this form to him. A copy of this completed formdated June 26, 2009, was labeled as “Exhibit 2” at the trial.

He testified that after reading the completed Form 7 report, he attended at theDefendant’s workplace on June 30, 2009 and determined that an employee had fallen from portable steps while attempting to retrievebundles of paper that were being stored in a transport storage trailer unit located near a building where the employee was working.

Hetestified that following this visit, the Defendant made changes to the transport storage trailer steps that in his opinion complied with hiswritten orders to the Defendant. 2 The injured worker, Mary Ellen Rouse, testified that as of the date in question, she had been working at the Defendant’s facility inHaldimand County for approximately eight years. She testified that her duties included such things as vaccinating and checking babychicks, putting paper in boxes and stacking boxes.

She testified that on the date in question, she noticed that her supply of paper wasrunning low and that she requested assistance from another female employee to obtain more paper. However, the other employee advisedher that she had other things to do. She testified that the other female employee did not accompany her outside, where she attempted toenter a transport storage trailer by herself in order to obtain the required paper.

She testified that this transport storage trailer had beenused for this purpose prior to her starting to work for the Defendant in 2001, and that she had not expressed any concern in the pastregarding how she was to access and egress the transport storage trailer. She testified that she had been climbing in and out of thistransport storage trailer at least once a week to obtain paper during her shifts and had not been concerned regarding this procedure priorto the date of this incident.

She testified that the six photographs taken by the Ministry of Labour inspector (Exhibits 3a) to 3f))accurately portrayed the state of the transport storage trailer and steps at the time of this incident. She testified that on the date inquestion, she climbed up steps and pulled herself up into the transport storage trailer, but slipped and fell to the ground while attemptingto exit the transport storage trailer in the same fashion as when she had entered the trailer.

She testified that she believed that she lostconsciousness when she fell to the ground, and that she was then taken by ambulance to the Norfolk General Hospital, where it wasdetermined that her left leg was fractured below the knee and where a doctor put her leg into a brace. She testified that she was latertransported to the Brantford General Hospital for additional treatment, including a different brace. A number of months later, a specialistperformed surgery on her leg in order to repair a torn cartilage.

She testified that she was off work from the date of the workplaceincident until October 2009, when she was able to return to work, but only for three days per week. She testified that she was stillexperiencing pain in her left leg at the time of the trial in 2011 and that she still may require future medical procedures regarding her leg.She was able to return to work on a full-time basis in February 2010. 3 At the conclusion of the Crown’s case, the Defence Counsel did not call any witnesses. THE LAW 4 Sections 25(1) and (2)(

h) of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1, state as follows under the heading“duties of employers”: 25.

(1) An employer shall ensure that, (

a) the equipment, materials and protective devices as prescribed are provided; (

b) the equipment, materials and protective devices provided by the employer are maintained in good condition; (

c) the measures and procedures prescribed are carried out in the workplace;

(

d) the equipment, materials and protective devices provided by the employer are used as prescribed; and (

e) a floor, roof, wall, pillar, support or other part of a workplace is capable of supporting all loads to which it may be subjectedwithout causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act. R.S.O.1990, c. O.1, s. 25 (1).

(2) Without limiting the strict duty imposed by subsection (1), an employer shall, (

h) take every precaution reasonable in the circumstances for the protection of a worker. SUBMISSIONS 5 The Crown Counsel argued that the step ladder arrangement that had been provided by the Defendant so that employees couldaccess and egress the transport storage trailer was not deemed to be ‘adequate’ as set out in

section 25 of the Occupational Health andSafety Act. She argued that although the dictionary

definitions for the words ‘adequate’, ‘access’ and ‘egress’ could be considered by theCourt, a definition for the word ‘adequate’ is also contained in O. Reg. 213/91 of the Occupational Health and Safety Act, regardingconstruction projects: 1.

(1) In this Regulation, “adequate”, in relation to a procedure, material, device, object or thing, means, (

a) sufficient for both its intended and its actual use, and (

b) sufficient to protect a worker from occupational illness or occupational injury, and “adequately” has a corresponding meaning; 6 The Crown Counsel cited several cases that emphasized the duty of care required by an employer required to minimize thechances of an employee being injured in the workplace. She argued that there was no dispute in the case at bar that the Defendant wasthe injured worker’s employer at the time of the incident that took place at the Defendant’s workplace on June 24, 2009, in thejurisdiction of this Court.

She argued that the Defendant failed to take reasonable precautions with respect to the routine visits byemployees to the transport storage trailer located outside the building where the injured worker carried out most of her duties. She arguedthat the purpose of the Occupational Health and Safety Act was to protect workers, even to the extent of protecting negligent workers aswas the situation in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] S.C.J. No. 2, SCC.

She argued that the stepsprovided by the Defendant for employees to access and egress the transport storage trailer were inadequate and the fact that no reportedinjuries had taken place in the past was simply luck. She argued that what happened to the worker on June 24, 2009 was an injury thatwas waiting to happen.

She argued that although transport truck drivers may use unconventional methods for access and egress totransport trailers, this particular transport trailer was being used for several years by the Defendant as a storage unit, and it should havehad stairs that provided a safer method for employees to access and egress the transport storage trailer. 7 The Defence Counsel argued that the Supreme Court set out the burden on the Crown in R. v. Sault Ste. Marie (City), (SCC), [1978] S.C.J.

No. 59, SCC, and that in the case at bar, the Crown has not proven beyond a reasonable doubt that theDefendant did not take ‘reasonable’ measures to protect its employees. He argued that because the Defendant’s workplace should beconsidered to be a farm operation, the Court should consider the guidelines regarding ‘falls, slips and trips’ contained in

Section 5,starting at page 22 of the Ministry of Labour’s publication (Exhibit 4) Occupational Health and Safety Guidelines for FarmingOperations in Ontario, [June 2006], Queen’s Printer for Ontario. He argued that the injured worker testified that she had followed theguideline of a ‘three point contact method’, and had ‘maintained contact with either two hands and one foot or two feet and one hand atall times’ as set out in this Ministry of Labour publication. He argued that some of the cases cited by the Crown Counsel involvedconstruction guidelines, and not farm operation guidelines.

He argued that the injured worker testified that she had used the stepsprovided by the Defendant once per week for many months using the three point contact method and there was no evidence of anyprevious injuries or of any complaints to the Defendant by employees regarding safety concerns connected with the use of the steps toaccess or egress the transport storage trailer. 8 The Defence Counsel referred the Court to the case of R. v. British Columbia Hydro and Power Authority, (BCSC), [1997] B.C.J. No. 1744, BCSC, a case involving pollution and fish habitats.

At para. 55, the BC Court of Appeal noted thefollowing: “…In other words, an accused must take all reasonable steps to avoid harm. However, that does not mean an accused must take all

conceivable steps”… The Defence Counsel argued that simply because a worker was injured while using the steps to access and egress the transport storage trailer does not mean that the steps provided by the Defendant for the employees to use were not safe to use. He argued that an injury does not have to take place for an inspector to make a determination of an unsafe workplace, and that there was no evidence presented in the case at bar that either employees or the joint health and safety committee had expressed safety concerns to the Defendant regarding these steps.

He argued that a defence of due diligence had been made out on a balance of probabilities, and that the Defendant should be found not guilty of the offence before this Court. 9 The Crown Counsel responded that the method described by the injured worker used to access and egress the transport storage trailer, included the fact that there was a substantial gap between the top step and the floor of the transport storage trailer, and this gap was shown by using a tape measure in Exhibits #3e) and #3f) to be a distance of 24 inches.

She argued that the Ministry of Labour’s standards do not require perfection, but what the Defendant had provided regarding workers’ safety with respect to the steps to access and egress the transport storage trailer were simply not adequate, as set out in the Ontario Court of Appeal case of R. v. Brampton Brick Ltd., [2004] O.J. No. 3025, OCA at para. 18 : “The Statute requires the Crown to prove that Brampton Brick failed to take every precaution reasonable in the circumstances, not some broader notion of acting reasonably.

The inquiry is to be conducted in light of the particular surrounding circumstances. ‘The circumstances’ is an element of the offence and those circumstances must be considered before concluding the precaution lacking was reasonable.” REASONABLE DOUBT 10 Lord Denning in the criminal case of Miller v. Minister of Pensions [1947] 2 All ER 372 , KBD, spoke about proving a case beyond a reasonable doubt: "the…degree of cogency…required in a criminal case before an accused person is found guilty…is well settled. It need not reach certainty, but it must carry a high degree of probability.

Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable', the case is proved, but nothing short of that will suffice". DECISION 11 I find that the Crown has met the burden of proving all of the essential elements of the case beyond a reasonable doubt.

I agree with the Crown’s assertions that this was an accident waiting to happen, and that the fact that this worker or other workers were not injured earlier was simply luck. I am persuaded that had an inspector from the Ministry of Labour reviewed the unorthodox method being used by the Defendant’s employees to access and egress the transport storage trailer by climbing and crawling from the steps and then onto the steps that had been provided by the Defendant for this purpose, it would have been determined by an inspector that the steps were not adequate.

I have taken into consideration all of the circumstances surrounding this workplace accident, and I find that the Defendant failed to take the reasonable precaution of ensuring that adequate access and/or egress was provided for the transport storage trailer.

Although according to the inspector’s testimony that the Defendant corrected the situation after the worker was injured on June 24, 2009, the inadequate steps had existed for many months until the accident took place. 12 As I find that all of the essential elements of the charge have been established beyond a reasonable doubt, and the defence of due diligence has not been established on a balance of probabilities, I find the Defendant guilty of this offence, and a conviction will be registered. Released: April 27, 2011 Signed: “Justice of the Peace Dan M. MacDonald”