R. v. Della Valle (J.E.), 2011 NSPC 67

• Judge: Ross, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: September 14, 2011
• Jurisdiction: Nova Scotia
• Citations: 2011 NSPC 67;(2011), 308 N.S.R.(2d) 105 (PC)

R. v. Della Valle (J.E.) (2011), 308 N.S.R.(2d) 105 (PC);

    976 A.P.R. 105

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. OC.019

Her Majesty the Queen v. James Edward Della Valle

(2202580; 2011 NSPC 67)

Indexed As: R. v. Della Valle (J.E.)

Nova Scotia Provincial Court

Ross, P.C.J.

September 14, 2011.

Summary:

Della Valle, an Occupational Health and Safety Coordinator employed by the Cape Breton Island Housing Authority, was charged with failing to take every reasonable precaution in the circumstances to protect his own safety and that of other persons at or near the workplace contrary to s. 17 of the Occupational Health and Safety Act.

The Nova Scotia Provincial Court found Della Vale guilty as charged.

Trade Regulation - Topic 7871

Industrial safety - Offences - Evidence - Della Vale, an Occupational Health and Safety Coordinator employed by the Cape Breton Island Housing Authority, was charged with breaching s. 17 of the Occupational Health and Safety Act - Section 17 provided that every employee, while at work, shall take every reasonable precaution in the circumstances to protect the employee's own health and safety and that of other persons at or near the workplace - The Nova Scotia Provincial Court stated that the paucity of evidence of actual harm or risk was not a fatal flaw in the Crown's case - Persons at a work site were expected to act in timely fashion on reliable information about possible dangers - Such risks might not materialize but nevertheless be real or a perceived risk might later turn out to be no actual risk - For purposes of s. 17, these were one and the same where a known risk materialized into actual harm - The duty to act arose where there was a "potential health hazard" identified by an individual at a work site, or known as a result of advice from a reliable source - Where someone in Della Vale's position had knowledge of a possible danger from a credible source, that alone might precipitate a duty to take preventive measures - It was immaterial whether the perceived risk was subsequently shown to be an actual, real risk - See paragraph 29.

Trade Regulation - Topic 7872

Industrial safety - Offences - Burden of proof - Della Valle, an Occupational Health and Safety Coordinator employed by the Cape Breton Island Housing Authority, was charged with failing to take every reasonable precaution in the circumstances to protect his own safety and that of other persons at or near the workplace contrary to s. 17 of the Occupational Health and Safety Act - The Nova Scotia Provincial Court stated that the term "prime facie case" coupled with "some evidence" risked confusing the Crown's burden in a trial of a regulatory offence with the burden of proof on the Crown in a preliminary inquiry - Such terminology was best avoided - See paragraph 33.

Trade Regulation - Topic 7872

Industrial safety - Offences - Burden of proof - Section 17 of the Occupational Health and Safety Act provided that every employee, while at work, shall take every reasonable precaution in the circumstances to protect the employee's own health and safety and that of other persons at or near the workplace - The Nova Scotia Provincial Court stated that "... the actus reus of the offence is the failure to take every reasonable precaution in the circumstances. The Crown must prove the actus reus beyond a reasonable doubt. The second branch of a due diligence defense would have the defendant prove, on a balance of probabilities, that he took all reasonable steps to avoid the commission of the offence. Whether either burden is met is assessed on all the evidence at trial, led by both parties, regardless of which party bears the legal onus. If 'precautions' may be equated with 'steps' and 'every' to 'all', then 'every reasonable precaution' equates to 'all reasonable steps'. Being equivalent terms, if the Crown proves the absence of such beyond a reasonable doubt, it is logically impossible for the Defense to establish the same proposition, on the same evidence. In other words, if the Crown succeeds in proving the actus reus in a general duty provision such as s.17, which a court must first determine, any analysis of the 'all reasonable steps' defense becomes moot and it should be unnecessary for a court to consider it. ... The 'mistake of fact' aspect of due diligence may still, at least in a logical sense, be available, although it is not easy to conceive of such a situation. ..." - See paragraphs 44 to 48.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - [See second Trade Regulation - Topic 7872 ].

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - Della Valle, an Occupational Health and Safety Coordinator employed by the Cape Breton Island Housing Authority, was charged with failing to take every reasonable precaution in the circumstances to protect his own safety and that of other persons at or near the workplace contrary to s. 17 of the Occupational Health and Safety Act - The Nova Scotia Provincial Court stated that "it seems that the Supreme Court's formulations of strict liability, and its legal companion the due diligence defense, occurred in cases where there was a prohibition against doing a specific thing. Cases have applied the formulation to cases where the charge was failing to carry out a positive duty, but even in these cases it appears there were particular measures - set out in other regulations, or an inspector's order, or recognized industry standards - which ought to have been taken. Phrases such as 'particular event', 'prohibited act' or 'proscribed act' are employed. The charge against Mr. Della Valle admits to no such specificity." - See paragraph 43.

Trade Regulation - Topic 7883.1

Industrial safety - Particular offences - Failure to take adequate precautions to ensure safety of pedestrian or other person at or near workplace - [See Trade Regulation - Topic 7871 and second Trade Regulation - Topic 7872 ].

Trade Regulation - Topic 7883.1

Industrial safety - Particular offences - Failure to take adequate precautions to ensure safety of pedestrian or other person at or near workplace - In October 2005, Della Vale, an Occupational Health and Safety Coordinator employed by the Cape Breton Island Housing Authority, obtained a report that confirmed that the insulation in attics of housing units owned and maintained by the Housing Authority contained asbestos - Della Vale delivered copies of the reports to two maintenance supervisors and explained the contents of the report including the recommended remedial measures of notifying employees, sealing the perimeter of the ceilings and locking the attic hatches - Neither of the supervisors took steps to implement the remedial measures - Della Vale did not report the findings to the Housing Authority's director who was his supervisor - He did not advise any other management personnel, the employees, contractor employees or the Joint Occupational Health and Safety Committee - He did not follow up to determine if the recommended measures were implemented - The Nova Scotia Provincial Court found Della Vale guilty of failing to take every reasonable precaution to protect his own safety and that of other persons at or near the workplace (Occupational Health and Safety Act, s. 17) - He should have immediately notified Housing Authority's director; followed up directly with the two maintenance supervisors to determine whether and to what extent they had acted on the report's recommendation; attended and reported the presence of asbestos at one of the Joint Occupational Health and Safety Committee's meetings; and instigated a formal hazard assessment for any work or activity which might have involved an employee of the Housing Authority entering the attic or disturbing the insulation from below - See paragraphs 49 to 56.

Trade Regulation - Topic 7884

Industrial safety - Particular offences - Failure to take every reasonable precaution - [See Trade Regulation - Topic 7871 , second Trade Regulation - Topic 7872 and second Trade Regulation - Topic 7883.1 ].

Trade Regulation - Topic 9006

Offences - General - Offences of strict liability - [See second Trade Regulation - Topic 7872 and second Trade Regulation - Topic 7874 ].

Cases Noticed:

R. v. Timminco Ltd. (2001), 144 O.A.C. 231; 153 C.C.C.(3d) 521 (C.A.), refd to. [para. 29].

R. v. Eagles (E.) (2009), 284 N.S.R.(2d) 256; 901 A.P.R. 256 (Prov. Ct.), refd to. [para. 29].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 33].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161, refd to. [para. 33].

R. v. Chapin, [1979] 2 S.C.R. 121; 26 N.R. 289, refd to. [para. 39].

R. v. MacMillan Bloedel Ltd. (2002), 173 B.C.A.C. 22; 283 W.A.C. 22; 2002 BCCA 510, refd to. [para. 40].

R. v. General Scrap Iron & Metals Ltd. (2002), 322 A.R. 32; 2002 CarswellAlta 869 (Q.B.), refd to. [para. 41].

R. v. Canada Brick Ltd., [2005] O.T.C. 61 (Sup. Ct.), refd to. [para. 41].

Statutes Noticed:

Occupational Health and Safety Act, S.N.S. 1996, c. 7, sect. 17 [para. 1 et seq.]

Counsel:

Peter Craig, for the Crown;

Tony Mozvik, for the defence.

This matter was heard at Sydney, Nova Scotia, on June 20 and 21, and September 14, 2011, by Ross, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on September 14, 2011.