R. v. Eagles (E.), (2009) 284 N.S.R.(2d) 256 (PC)

• Judge: Tax, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: January 29, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 284 N.S.R.(2d) 256 (PC);2009 NSPC 49

R. v. Eagles (E.) (2009), 284 N.S.R.(2d) 256 (PC);

    901 A.P.R. 256

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. NO.034

Her Majesty the Queen v. Eric Eagles

(1715571; 1715572; 1715573; 2009 NSPC 49)

Indexed As: R. v. Eagles (E.)

Nova Scotia Provincial Court

Tax, P.C.J.

November 6, 2009.

Summary:

An employee fell off scaffolding. He died from his injuries. Eagles, the supervisor and foreman of the job site, was charged with three offences under sections of the Fall Protection and Scaffolding Regulations, contrary to s. 17(1) and s. 74(1)(a) of the Occupational Health and Safety Act. He was charged with: (1) failing to ensure that a guardrail was installed at the perimeter or open side of the work area where a person was exposed to the hazard of falling (Regulations, s. 7(1)), (2) failing to ensure that a guardrail was constructed or installed (Regulations, s. 9(2)(d)), and (3) failing to ensure that a work platform was securely fastened in place so as to prevent movement (Regulations, s. 20(1)).

The Nova Scotia Provincial Court convicted Eagles of the first and second offences but acquitted him of the third offence.

Trade Regulation - Topic 7870

Industrial safety - Offences - Mens rea - Whether required - Eagles was charged with three offences under sections of the Fall Protection and Scaffolding Regulations and the Occupational Health and Safety Act - The parties agreed that the offences were strict liability offences - The Nova Scotia Provincial Court stated that "... the proof of the actus reus of a strict liability offence does not include proof of a mental element, negligence or actual knowledge of a hazard. The foreseeability of a hazard is properly to be considered as part of the due diligence defence. I also conclude that the duty to comply with the provisions of the Occupational Health and Safety Act [OHSA] arises from their very existence, and not from the potential of harm from their breach. In order to establish a prima facie case, the Crown must prove the actus reus beyond a reasonable doubt, that is, that the accused failed to comply with the minimum statutory provisions of the OHSA or its Regulations. However, the court must still carefully consider the wording of the specific statutory provision that forms the substance of the offence charged in order to determine whether the Crown has adduced some evidence on each essential element of the charge. ... Depending on the specific wording of the regulatory provision, the prima facie case may be established by the Crown proving that the accused committed the 'prohibited act' itself." - See paragraphs 79 to 82.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - Eagles was charged with three offences under sections of the Fall Protection and Scaffolding Regulations and the Occupational Health and Safety Act - The parties agreed that the offences were strict liability offences - The Nova Scotia Provincial Court stated that "[t]he focus of the due diligence test is the conduct which was or was not exercised in relation to the 'particular event' giving rise to the charge, and not a more general standard of care ... I conclude that the standard of care is not based upon the foreseeability of the particular accident itself or the specific way in which the accident occurred. In my view, the standard of care is based on whether the defendant took all , not just some, steps that a reasonable person would have taken to avoid committing the 'prohibited act,' that is, the contravention of the minimum statutory requirements to ensure the health and safety of persons in the workplace." - See paragraphs 91 and 92.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - [See Trade Regulation - Topic 7870 and first and second Trade Regulation - Topic 7888 ].

Trade Regulation - Topic 7888

Industrial safety - Particular offences - Failure to provide and maintain platform, scaffold or fall protection - An employee (Myles) fell 13 feet off scaffolding - He died from his injuries - Eagles, the supervisor and foreman of the job site, was charged with failing to ensure that a guardrail was installed at the perimeter or open side of the work area where a person was exposed to the hazard of falling (Fall Protection and Scaffolding Regulations, s. 7(1) and contrary to s. 17(1) and s. 74(1)(a) of the Occupational Health and Safety Act) - Eagles argued, inter alia, that he took all reasonable care within his control as the foreman and supervisor - He evaluated the adequacy of the scaffolding and instructed employees who were experienced and competent on how to erect scaffolding in order to comply with the Regulations - Myles' fall was an unexpected and unpredictable accident that Eagles could not foresee - He argued that Myles stepped into an unsafe work location and in so doing, he did not exercise reasonable care for his own safety when he fell to his death - Myles should have waited until the scaffold construction was completed - The Nova Scotia Provincial Court convicted Eagles - Myles was working at the end of the work platform, just before he fell to his death - He was either required or permitted by Eagles to be stationed at the end of the work platform in order to complete the brickwork in that area and was therefore stationed in a "work area" - A "guardrail" was not installed as required at the perimeter or open side of that work area - Eagles failed to establish that he exercised due diligence by taking all the care which a reasonable man might have been expected to take in all of the circumstances - As the foreman and site supervisor he had an overarching duty to supervise and inspect the scaffolding - He failed "to ensure" or "make certain" that all guardrails were installed before work was undertaken - He failed to establish that he had taken every reasonable precaution in all of the circumstances of the case - See paragraphs 109 to 124 and 136 to 152.

Trade Regulation - Topic 7888

Industrial safety - Particular offences - Failure to provide and maintain platform, scaffold or fall protection - An employee (Myles) fell 13 feet off scaffolding - He died from his injuries - Eagles, the supervisor and foreman of the job site, was charged with failing to ensure that an intermediate guardrail was constructed or installed (Fall Protection and Scaffolding Regulations, s. 9(2)(d) and contrary to s. 17(1) and s. 74(1)(a) of the Occupational Health and Safety Act) - Eagles argued that he had directed an experienced employee to install an intermediate rail, but he failed to do so before the accident - The Nova Scotia Provincial Court convicted Eagles - Even if Eagles did not have to conduct hands-on supervision because he had a very experienced crew, that did not mean that his overarching responsibility for health and safety could be completely delegated to the workers - Eagles was negligent in failing to properly supervise and fully inspect the scaffolding structure to "ensure" or make certain that the guardrails had been installed or constructed as fall protection measures before the masons began their work - The court was not satisfied that Eagles took every reasonable precaution in all the circumstances of this case - See paragraphs 125 and 153 to 157.

Trade Regulation - Topic 7888

Industrial safety - Particular offences - Failure to provide and maintain platform, scaffold or fall protection - An employee (Myles) fell 13 feet off scaffolding - He died from his injuries - Eagles, the supervisor and foreman of the job site, was charged with failing to ensure that a work platform was securely fastened in place so as to prevent movement (Fall Protection and Scaffolding Regulations, s. 20(1) and contrary to s. 17(1) and s. 74(1)(a) of the Occupational Health and Safety Act) - There was evidence that some cleating was present on the work platform - However, the Crown argued that the cleats had to be installed in close proximity and parallel to the rail of the scaffold - The Nova Scotia Provincial Court rejected the argument and acquitted Eagles - The Regulations did not contain a definition of "cleating", nor was there any reference as to where the cleats were to be installed under the work platform so as to prevent its movement - The evidence established that the work platform did not actually move either just before or immediately after Myles fell - The work platform had several securely fastened cleats underneath the wood planks and the wood planks were held in place by an "outrigger" system - As the Crown led no evidence on the potential movement of the planks or that the method used by Eagles to secure those planks did not provide an equivalent level of safety, the Crown had not established the actus reus of the offence beyond a reasonable doubt - See paragraphs 126 to 133.

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 67].

R. v. Chapin, [1979] 2 S.C.R. 121; 26 N.R. 289, refd to. [para. 68].

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. 69].

R. v. Timminco Ltd. (2001), 144 O.A.C. 231; 153 C.C.C.(3d) 521 (C.A.), refd to. [para. 74].

R. v. Grant Paving & Materials Ltd., 1996 CarswellOnt 3996 (C.A.), refd to. [para. 74].

R. v. Eisner (J.R.) Contracting Ltd. (1994), 135 N.S.R.(2d) 119; 386 A.P.R. 119 (Prov. Ct.), refd to. [para. 81].

R. v. Canadian Tire Corp., [2004] O.T.C. 668 (Sup. Ct.), refd to. [para. 86].

R. v. Canada Brick Ltd., [2005] O.T.C. 611 (Sup. Ct.), refd to. [para. 87].

R. v. General Scrap Iron & Metals Ltd. (2002), 322 A.R. 32; 2002 CarswellAlta 869 (Q.B.), refd to. [para. 89].

R. v. MacMillan Bloedel Ltd. (2002), 173 B.C.A.C. 22; 283 W.A.C. 22; 2002 BCCA 510, refd to. [para. 91].

R. v. Brampton Brick Ltd. (2004), 189 O.A.C. 44 (C.A.), refd to. [para. 91].

R. v. Wyssen (J.) (1992), 58 O.A.C. 67 (C.A.), refd to. [para. 143].

Grant Forest Products Inc. v. Ontario (Minister of Labour), [2004] O.A.C. Uned. 308 (C.A.), refd to. [para. 144].

Statutes Noticed:

Fall Protection and Scaffolding Regulations - see Occupational Health and Safety Act Regulations (N.S.).

Occupational Health and Safety Act Regulations (N.S.), Fall Protection and Scaffolding Regulations, Reg. 2/96, sect. 9 [para. 107].

Counsel:

Peter Craig, for the Crown;

Donald Murray, Q.C., for the defence.

This matter was heard on December 8-12, 2008 and January 29, 2009, at Dartmouth, N.S., and on March 24, 2009, at New Glasgow, N.S., by Tax, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision on November 6, 2009.