R. v. Eisner (J.R.) Contracting Ltd., (1994) 135 N.S.R.(2d) 119 (ProvCt)

• Judge: Gibson, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: October 14, 1993
• Jurisdiction: Nova Scotia
• Citations: (1994), 135 N.S.R.(2d) 119 (ProvCt)

R. v. Eisner Contracting Ltd. (1994), 135 N.S.R.(2d) 119 (ProvCt);

  386 A.P.R. 119

MLB headnote and full text

Her Majesty The Queen v. J.R. Eisner Contracting Limited

(Case Nos. 375366, 375367, 375368, 375370, 375372)

Indexed As: R. v. Eisner (J.R.) Contracting Ltd.

Nova Scotia Provincial Court

Gibson, P.C.J.

June 23, 1994.

Summary:

The accused contractor dug an unshored and unbraced trench that failed to comply with s. 90 of the Construction Safety Regu­lations. The accused was charged with fail­ing to comply with s. 90, thereby commit­ting an offence under ss. 9(2)(c) and 49(1)(a) of the Occupational Health and Safety Act; failing to take precautions to ensure the health and safety of workers (ss. 9(1)(a) and 49(1)(a)); failure to ensure that workers were familiar with health and safety hazards (ss. 9(1) and 49(1)(a)); and failure to take rea­sonable precautions not to expose workers to health or safety hazards (ss. 9(1)(f) and 49(1)(a)).

The Nova Scotia Provincial Court found the accused guilty of failing to comply with s. 90 of the Regulations, thereby committing an offence contrary to ss. 9(2)(c) and 49(1)(a) of the Act. The defence of due diligence was not established. However, the technical breach of s. 90 did not support a conviction on the latter three charges.

Trade Regulation - Topic 7883

Industrial safety - Particular offences - Failure to ensure health and safety of workers - [See Trade Regulation - Topic 7890 ].

Trade Regulation - Topic 7884

Industrial safety - Particular offences - Failure to take every reasonable precaution - [See Trade Regulation - Topic 7890 ].

Trade Regulation - Topic 7890

Industrial safety - Particular offences - Failure to support or slope trenches - Section 90 of the Construction Safety Regulations made it an offence to fail to support trench walls with adequate shoring and bracing - Section 91(b)(i) provided that s. 90 did not apply if the trench width was greater than its height - The Crown proved that the accused's trench violated s. 90 and that s. 91(b)(i) did not apply - The Nova Scotia Provincial Court found the accused contractor guilty of an offence under ss. 9(2)(c) and 49(1)(a) of the Occu­pational Health and Safety Act - The Crown need not prove that the trench actually exposed workers to a harmful situation or that the trench walls were likely to collapse - The court stated that the offence was technical, that no harm resulted or was likely to result - Accord­ingly, the court acquitted that accused on charges of failing to take precautions to ensure the health and safety of workers (ss. 9(1)(a)); failure to ensure that workers were familiar with health and safety haz­ards (ss. 9(1)); and failure to take reason­able precautions not to expose workers to health or safety hazards (ss. 9(1)(f) and 49(1)(a)) - Those offences required more than a technical violation of s. 90 of the Regulations.

Cases Noticed:

R. v. White and Johnson (1988), 93 A.R. 254 (Q.B.), refd to. [para. 19].

R. v. MacDougall, [1982] 2 S.C.R. 605; 44 N.R. 560; 54 N.S.R.(2d) 562; 112 A.P.R. 562; 1 C.C.C.(3d) 65, refd to. [para. 31].

Statutes Noticed:

Construction Safety Regulations - see Occupational Health and Safety Act Regulations (N.S.).

Occupational Health and Safety Act, R.S.N.S. 1989, c. 320, sect. 9(2)(c), sect. 49(1)(a) [para. 38].

Occupational Health and Safety Act Regulations (N.S.), Con­struction Safety Regu­lations, sect. 90 [para. 2]; sect. 91 [para. 2].

Occupational Health and Safety Act, R.S.A. 1980, c. O-2, sect. 2(2)(a) [para. 22].

Counsel:

L. Giles, for the Crown;

J. MacPherson, for the accused.

This case was heard on October 14, 1993, April 15 and 22, 1994, at Dartmouth, N.S., before Gibson, P.C.J., of the Nova Scotia Provincial Court, who delivered the follow­ing judgment on June 23, 1994.