R. v. Case Enterprises Ltd. et al., (1993) 147 N.B.R.(2d) 180 (PC)

• Judge: Savoie, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: March 26, 1993
• Jurisdiction: New Brunswick
• Citations: (1993), 147 N.B.R.(2d) 180 (PC)

R. v. Case Ent. Ltd. (1993), 147 N.B.R.(2d) 180 (PC);

    147 R.N.-B.(2e) 180; 375 A.P.R. 180

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Her Majesty The Queen, on the information of Joanne L. Rideout, Administrative Assistant Policy and Legislation v. Case Enterprises Ltd. (a body corporate) and McNevin Excavating Ltd. (a body corporate) (defendants)

Indexed As: R. v. Case Enterprises Ltd. et al.

New Brunswick Provincial Court

Savoie, P.C.J.

March 26, 1993.

Summary:

McNevin Excavating was a subcontractor doing excavation work on a government highway project. Case Enterprises was a sub-subcontractor hired by McNevin. A Case employee was killed when a trench collapsed and buried him alive. Case was charged with failing to take reasonable precautions to ensure the health and safety of its employee by failing to ensure compli­ance with ss. 21(8) and 21(5)(c) of Regula­tion 77-1 (requiring that trenches over 1.2 metres deep be shored up and sloped) under the Occupational Health and Safety Act, contrary to ss. 9(1)(a) and 47(1) of the Act. McNevin was charged with failing to slope the trench (s. 21(5)(c) of Regulation 77-1), thereby breaching ss. 10(a) and 10(b) of the Act, which required a contractor or subcon­tractor to take reasonable precautions to ensure the health and safety of any person having access to the work site. McNevin pleaded guilty. Case pleaded not guilty.

The New Brunswick Provincial Court found both companies guilty of the offences charged and fined Case a total of $8,000 and McNevin a total of $9,000.

Trade Regulation - Topic 7915

Industrial safety - Particular offences - Sentences - Failure to support or slope trenches - McNevin Excavating was a subcontractor doing excavation work on a government highway project - Case Enterprises was a sub-subcontractor hired by McNevin - A Case employee was killed when a trench collapsed and buried him alive - Case was charged with failing to take reasonable precautions to ensure the health and safety of its employee by failing to ensure compliance with ss. 21(8) and 21(5)(c) of Regulation 77-1 (requiring that trenches over 1.2 metres deep be shored up and sloped) under the Occupa­tional Health and Safety Act, contrary to ss. 9(1)(a) and 47(1) of the Act - McNevin was charged with failing to slope the trench (s. 21(5)(c) of Regulation 77-1), thereby breaching ss. 10(a) and 10(b) of the Act, which required a contractor or subcontractor to take reasonable precau­tions to ensure the health and safety of any person having access to the work site - Both were small to intermediate companies with no previous complaints - Both had supervisors on site - Trenches were a known danger - The New Brunswick Provincial Court sentenced Case to a total fine of $8,000 and McNevin to a total fine of $9,000.

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30; 7 C.E.L.R. 53, refd to. [para. 4].

R. v. Pope (A.O.) Ltd. (1972), 5 N.B.R.(2d) 715 (C.A.), refd to. [para. 5].

R. v. Cotton Felts Ltd. (1982), 2 C.C.C.(3d) 287 (Ont. C.A.), refd to. [para. 25].

R. v. Lorneville Mechanical Contractors Ltd. (1993), 145 N.B.R.(2d) 161; 372 A.P.R. 161 (Prov. Ct.), refd to. [para. 27].

Statutes Noticed:

Occupational Health and Safety Act, R.S.N.B. 1983, c. O-0.2, sect. 9(1)(a), sect. 9(1)(c) [para. 1]; sect. 10(a), sect. 10(b) [para. 26]; sect. 47(1) [para. 40].

Occupational Health and Safety Act Regu­lations (N.B.), Reg. 77-1, sect. 21(5)(c) [para. 2]; sect. 21(8)(a) [para. 3].

Counsel:

Ronald J. LeBlanc, for the prosecution;

Marty Rinzler, for the defendant, Case Enterprises Ltd;

John MacFarlane, for the defendant, McNevin Excavating Ltd.

This case was heard at Moncton, N.B., before Savoie, P.C.J., of the New Brunswick Provincial Court, who delivered the follow­ing judgment orally on March 26, 1993.