Weiler, Maloney, Nelson Nokiiwin Tribal Council Aboriginal Health & Safety Conference November 24,...

Weiler, Maloney, Nelson

Nokiiwin Tribal CouncilAboriginal Health & Safety Conference

November 24, 2015

“Due Diligence”

Weiler, Maloney, Nelson Brad Smith


Offences – OHSA and CLC

OHSA CLC

Training 25(2)(a) 125(1)(q)

Competent Supervisor 25(2)(c) 125(1)(z)

Advise worker of hazard 25(2)(d) 125(1)(s)

Every precaution reasonable 25(2)(h) 124125(1)(z.14)


Criminal Code

s. 217.1 Duty of persons directing work

“Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task”


Criminal Negligence

“everyone is criminally negligent who

(a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” (219(1))

“duty” means a duty imposed by law (219(2))

Guilty if criminal negligence caused death (s. 220) or bodily harm (s. 221)


OHSA v. CCC v. CLC

mens rea offences: Prove the defendant committed the act or omission and had the required intent.

strict liability offences: Prove the defendant committed the act. Burden than shifts to defendant that it exercised due diligence


Due Diligence

“… the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.”

R. v. Sault Ste. Marie (1978) 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161, [1978] 2 S.C.R. 1299, at page 374 C.C.C.


Mistake of Fact

Two Tests

First, the defendant must have the subjective belief that the information it relied upon was accurate.

Second, it must be determined objectively that the truth of the mistaken facts were honestly and reasonably held.


Mistake of Fact

“an honest and reasonable belief in a set of facts, which if true, would render the act or omission innocent.”

R. v. London (City), [1999] O.J. No. 4461 (Ont.Ct.Justice (Prov.Div.)) (Trachy J.P.) (February 17, 1999), at paragraph 4.


Mistake of Fact

• the defendant should have questioned the accuracy of the information provided by the general contractor, and made further inquiries, because the information previously supplied was proven to be incorrect

• there was information the defendant could have obtained from the general contractor that would have shown the information (to remove the concrete duct) was incorrect;

• the defendant could have insisted to see the locate certificate (which would have disclosed that it did not exist, which would have necessitated a shut down of the excavation)

R. v. London Excavators & Trucking Limited (1998), 40 O.R. (3d) 32 (C.A.).


All Reasonable Care - Foreseeability

“The test which should have been applied was not whether a reasonable man in the circumstances would have foreseen the accident happening in the way that it did happen, but rather whether a reasonable man in the circumstances would have seen that an "overswing" [ie. risk/hazard] of the gate can be dangerous in the circumstances …”

R. v. Rio Algom Ltd. (1988), 66 O.R. (2d) 674 (C.A.) at page 682.


Foreseeability

“The test is not whether the particular accident was foreseeable but whether a reasonable person would have foreseen that the circumstances that led to the accident created a hazard requiring remedial intervention.”

R. v. London (City), [2000] O.J. No. 1033 (Ont.Ct.Justice) (McGowan J.) at paragraph 29.


Overlapping Duties

• duties are joint and several

• one employer cannot point a finger at another employer who might be closer to the situation. Every employer has a duty to see that the workplace is safe

• Each of the "levels" ("constructor", "employer", "supervisor") has its own responsibility


Factors

• The level of risk

• The degree of harm

•The frequency with which a task is undertaken

• The skill, experience, knowledge and training of those involved

• Past history of problems

• Standards described by

• the Occupational Health and Safety Act

• industry practice

• company practice or policy

• other legislation


Factors

• The availability of “backup” systems

• Emergency response measures

• Communication systems

• Record keeping

• Position, location or level within the overall organization

• The particular work or task undertaken

• Training of employees

o General Training

o Specific Training

• Monitoring of performance

• Discipline of employees

The scene of the fatal platform collapse at 2757 Kipling Ave. in Toronto on Dec. 25, 2009. (Charla Jones/The Globe and Mail/Charla Jones/The Globe and Mail)


Facts

• Metron contracted to re-store concrete balconies

• Swartz was owner and director of Metron

• Kazenelson was project manager

• Swing ‘N’ Scaff was supplier of scaffolding

• Patrick Deschamps was owner and director of Swing ‘N’ Scaff


Facts

• At the end of the day December 24, 2009

• 7 workers were descending from the 13th floor and the swing stage platform collapsed

• Four of the five workers who fell died

• The 5th worker suffered serious injuries

• The 6th worker was properly attached to a safety line was uninjured


Offences - OHSA

• 61 charges under Occupational Health and Safety Act

• 30 charges against Metron Construction Corporation

• 16 charges against Joel Swartz as director of Metron

• 8 charges against a Metron supervisor

• 4 charges against the platform supplier Swing ‘N’ Scaff

• 3 charges against Patrick Deschamps a director of Swing ‘N’ Scaff


Offences – Criminal Code

• Criminal Code charges: criminal negligence causing death and criminal negligence causing bodily harm

• Swartz (withdrawn and plea under OHSA)

• another company official (withdrawn)

• Metron (plea under Criminal Code)

• Kazenelson (conviction under Criminal Code)


• Swartz plead guilty as a director and was convicted of 4 offences under the Occupational Health and Safety Act for failing to ensure worker was trained, training records were maintained, using stage while defective and stage not loaded in excess of design and fined a total of $90,000 plus victim surcharge of 25% ($22,500)

• Metron plead guilty was convicted of criminal negligence and fined $750,000 plus victim surcharge of 15% ($112,500)

• Swing N Scaff Inc. plead guilty failing to ensure the platform was in good condition and fined $350,000 plus victim surcharge of 25% ($87,500)

• Deschamps plead guilty as a director to failing to ensure the platform was in good condition and that it was designed by a professional engineer and fined $50,000 plus victim surcharge of 25% ($12,500)


R. v. Kazanelson - Factors• The swing stage was not properly constructed

• No capacity labelling

• Deschamp modified design of swing stage

• Only two lifelines were available on the swing stage

• 3 of 4 workers, including the site supervisor, tested positive for marijuana at a level consistent with having been recently ingested – not evidence at criminal trial

• Metron had $50,000 bonus dependent on completion by end of the year

• project start was delayed

• several immigrant workers with limited knowledge of English

• Kazenelson did not have experience in this type of work


R. v. Kazenelson

Was Kazenelson a supervisor?

It was not disputed that Kazenelson was someone with “the authority to direct how another person does work”

• Notice of project identified Kazenelson as Supervisor

• Kazenelson signed MOL Field Reports

The Court determined Kazenelson’s duty under s. 217.1 was engaged when he joined the workers on December 24th.


R. v. Kazenelson

• Kazenelson was the project manager

• Hierarchy:

• workers reported to site supervisor (Fazilov)

• site supervisor reported to project manager (Kazenelson)

• project manager reported to owner (Swartz)


R. v. Kazenelson

Differences in analysis between OHSA and CCC

general performance as a project manager

“... most of the evidence that the Crown relies on in that respect is irrelevant to adetermination of the central issues in this case.”

¶ 52


R. v. Kazenelson

Inspections

• Construction Health and Safety Inspector visited site 9 times in 9 weeks and issued a Stop Work Order

“It is a reasonable inference that apart from the small number of specific issues discussed earlier in these reasons, none of which was particularly significant, he never noticed any safety concerns.”

¶ 56


R. v. Kazenelson

Training records were missing and substandard safety meetings

“… these things had nothing to do with why the workers boarded the stage or why the stage collapsed”

¶ 59


R. v. Kazenelson

Training was insufficient (one worker not trained on fall arrest)

“… In all of the circumstances, it would be unreasonable to attribute the decision that the workers made on December 24 to get onto the stage notwithstanding the absence of lifelines to a deficiency in their training”

¶ 58


R. v. Kazenelson

Supervision

“The Crown’s submission that Mr. Kazenelson failed to properly supervise Mr. Fazilovappears to rest on the assumption that the absence of evidence that he did supervise him is evidence that he did not. Such an assumption, of course, would reverse the burden of proof. … I am satisfied that Mr. Kazenelson failed to adequately supervise Fazilov on the afternoon of December 24, the Crown has failed to demonstrate that any prior inadequacies in the supervision of Fazilov had anything to do with why the workers boarded the stage without lifelines”

¶ 60


R. v. Kazenelson

Condition of swing stage

Structural engineer testified “that none of these safety deficiencies had anything to do with the chain of events that caused the stage to collapse or the workers to fall. … I am now of the view that they are irrelevant to any issue that has to be decided in this case”

¶ 61


R. v. Kazenelson

Initial inspection of swing stage

“Assuming that a proper inspection of the swing stage would have revealed the problems that caused the collapse, the Crown has failed to connect the failure to conduct such an inspection to Mr. Kazenelson. ”

¶ 62


R. v. Kazenelson

Subsequent inspection of swing stage

“… by December 24 a proper inspection would have revealed the other defects that contributed to the collapse. … Mr. Kazenelson believed that Fazilov was experienced in balcony restoration work. The Crown has failed to show that Mr. Kazenelson had reason to think that Fazilov was not doing what was expected of him in relation to inspecting the equipment. To put it another way, while the Crown has proved that the stage in drop 5/6 was in a dangerous condition on December 24 and that it should not have been in use, the Crown has not shown that the fact that it was being used was the consequence of a breach of Mr. Kazenelson’s duty to protect the workers”

¶ 64


R. v. Kazenelson

What happened on December 24th?

• Kazenelson knew the stage had only 2 lifelines • Kazenelson asked Fazilov about the 2 lifelines and was told not to worry

• Kazenelson was present when all workers, including Fazilov and Kazenelson, boarded the stage right before it collapsed


R. v. Kazenelson

“a victim's contributory negligence is no answer to a charge of crime … [It] is generally no defence that the victim laid himself open to the act, or was himself guilty ofnegligence bringing it about”.

(¶ 147)


R. v. Commodore Business Machines November 15, 1985

Prosecution under OHSA

“… the scheme of the Act appears to be to protect the foolish heedless thoughtless employee; the wise careful and thoughtful one will protect him or herself.”


R. v. Kazenelson

Sentence? January 11, 2016

• Judge stated there will be incarceration

• Crown: 4-5 years

• Defence: 1-2 years


Learning Lessons • Meet or exceed duties and obligations:

• Occupational Health and Safety Act and Regulations • Industry standards

• Clearly define lines of authority• Clear practices and policies• Properly supervise • Inspect equipment • Maintain records• Train workers• Take action when breaches of Act, regulations, industry standards and training • Inform workers of hazards• Negligence of others – workers, suppliers – are not intervening actions. Have to anticipate and take action regarding negligence of others • Address an obvious and serious risk


Questions


Send me an email, [email protected], if you want a copy of this presentation or any of the cases.


Nokiiwin Tribal CouncilAboriginal Health & Safety Conference

November 24, 2015

“Due Diligence”

Brad Smith(807) 625-8891

[email protected]

Weiler, Maloney, Nelson Nokiiwin Tribal Council Aboriginal Health & Safety Conference November 24,...

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