R. v. Leil (A.W.) Cranes & Equipment (1986) Ltd., 2003 NSPC 60

• Judge: Tufts, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: December 12, 2002
• Jurisdiction: Nova Scotia
• Citations: 2003 NSPC 60;(2003), 223 N.S.R.(2d) 203 (PC)

R. v. Leil Cranes & Equipment (2003), 223 N.S.R.(2d) 203 (PC);

 705 A.P.R. 203

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. AP.030

Her Majesty the Queen v. A.W. Leil Cranes & Equipment (1986) Limited

(1002471; 1002472; 1002473; 1002474; 2003 NSPC 60)

Indexed As: R. v. Leil (A.W.) Cranes & Equipment (1986) Ltd.

Nova Scotia Provincial Court

Tufts, P.C.J.

March 28, 2003.

Summary:

A company provided crane services for an inspection of an apartment complex. During the lift, the crane tipped over and three men in a basket on the end of the boom were injured. The company was charged with the following regulatory offences under the Occupational Health and Safety Act: (1) failing to provide information necessary for the crane operator to determine the safe operating capacity of the crane; (2) using a crane supported work platform, the design of which was not certified by a professional engineer; (3) failing to supervise the crane operator; (4) failing to ensure that the crane was not loaded beyond its safe capacity.

The Nova Scotia Provincial Court found the company guilty on counts one, three and four. The court acquitted the company on count two.

Editor's note: for the decision respecting sentence see 223 N.S.R.(2d) 225; 705 A.P.R. 225.

Criminal Law - Topic 82

General principles - Res judicata (multiple convictions for same subject matter precluded) - Bars to raising the defence - The Crown laid two informations against the accused company for Occupational Health and Safety Act offences - The informations set out the same offences - The first information charged "A.W. Leil Cranes & Equipment (1986) Ltd." - The second information charged "A.W. Leil Cranes & Equipment (1986) Ltd., operating in the name and style of Sagadore Cranes & Equipment Ltd." - The accused pleaded not guilty to all counts in both informations - The Crown finished its case and indicated that it did not intend to proceed on the second information - The court dismissed the second information for want of prosecution - The Nova Scotia Provincial Court denied the accused's plea of autrefois acquit and claim of res judicata - The two informations were duplicates - There was never an intention to proceed on both informations - The accused was not in jeopardy on the duplicate information - Further, the dismissed information was not an "earlier proceeding" - Finally, the dismissal of the second information was technical in nature - See paragraphs 2 to 41.

Criminal Law - Topic 4225

Procedure - Pleas - Plea of autrefois acquit - [See Criminal Law - Topic 82 ].

Trade Regulation - Topic 7888

Industrial safety - Particular offences - Failure to provide and maintain work platform or scaffold - Section 37(7) of the Fall Protection and Scaffolding Regulations under the Occupational Health and Safety Act provided that the design of a crane supported work platform that was not commercially manufactured had to be certified by a professional engineer and be erected, used and maintained according to that design - A company was charged with, inter alia, breaching s. 37(7) - The Nova Scotia Provincial Court held that the burden was on the Crown to show that the design of the basket was not certified by a professional engineer - It was not for the defence to show that it was - The Regulations did not appear to require that a design certificate be on hand or maintained by the defendant - It was open to the Crown to have a professional engineer give an opinion that the subject basket could not possibly have been certified by a professional engineer - See paragraphs 69 to 75.

Trade Regulation - Topic 7889

Industrial safety - Particular offences - Failure to provide information, instruction, training or supervision - A company provided crane services for an inspection of an apartment complex - There was a basket at the end of the boom - A large block and hook not necessary for the job remained on the boom's unextended end - During the lift, the crane tipped over - Three men in the basket were injured - The Nova Scotia Provincial Court found the company guilty of failing to give the crane operator the necessary information to determine the crane's safe operating load capacity - Although precise information was not required, sufficient information respecting the weights of the basket, the block and the hook had to be given to the operator - The weights were critical to the crane's safe operation range and capacity - The court agreed that the exact cause of the accident was not critical to the determination of the charge - The offence was complete before the crane was operated, or at least, when the operator began to extend the boom and go beyond the planned lift - See paragraphs 59 to 68.

Trade Regulation - Topic 7893.1

Industrial safety - Particular offences - Exceeding safe lifting load - A company provided crane services for an inspection of an apartment complex - During the lift, the crane tipped over - Three men in a basket were injured - The company was charged with failing to ensure that the crane was not loaded beyond its safe working load - The company argued that although the crane may have been operated beyond its safe lifting capacity, that did not necessarily mean that it was loaded beyond its safe working load - The Nova Scotia Provincial Court found the company guilty - The crane was "loaded" at the time it was set up (i.e., when its location was determined, the men and equipment were loaded and it was decided that a large block and hook not necessary for the job would remain on the boom's unextended end) - While the crane was loaded within capacity for the planned lift, the operator had no knowledge of the crane's true load - When the operator moved away from the planned lift area, the crane was overloaded - This overloading resulted from the operator's original action - See paragraphs 112 to 115.

Trials - Topic 1108

Summary convictions - Defences - Plea of autrefois acquit - [See Criminal Law - Topic 82 ].

Cases Noticed:

R. v. Riddle (1979), 29 N.R. 91; 18 A.R. 525; 48 C.C.C.(2d) 365 (S.C.C.), refd to. [para. 8].

R. v. Petersen (1982), 44 N.R. 92; 18 Sask.R. 162; 69 C.C.C.(2d) 385 (S.C.C.), refd to. [para. 8].

R. v. Conrad, [1983] N.S.J. No. 320 (C.A.), refd to. [para. 8].

R. v. Selhi (1985), 38 Sask.R. 90; 18 C.C.C.(3d) 131 (C.A.), affd. (1990), 110 N.R. 318; 86 Sask.R. 253; 53 C.C.C.(3d) 576 (S.C.C.), refd to. [para. 8].

Bonli v. Gosselin et al. (1981), 13 Sask.R. 45; 25 C.R.(3d) 303 (C.A.), refd to. [para. 14].

R. v. Logan (1981), 49 N.S.R.(2d) 59; 96 A.P.R. 59; 64 C.C.C.(2d) 238 (C.A.), refd to. [para. 15].

MacNeill v. Nova Scotia (Attorney General) (1982), 54 N.S.R.(2d) 72; 112 A.P.R. 72 (C.A.), refd to. [para. 18].

R. v. Gould, [1985] 5 W.W.R. 430; 40 Sask.R. 173 (C.A.), refd to. [para. 20].

R. v. Moore, [1988] 1 S.C.R. 1097; 85 N.R. 195; 41 C.C.C.(3d) 289, refd to. [para. 22].

R. v. Doyle, [1977] 1 S.C.R. 597; 9 N.R. 285; 10 Nfld. & P.E.I.R. 45; 17 A.P.R. 45; 29 C.C.C.(2d) 177, refd to. [para. 26].

R. v. Pretty (1989), 47 C.C.C.(3d) 70 (B.C.C.A.), refd to. [para. 27].

R. v. Chamberlain (1991), 117 N.B.R.(2d) 62; 295 A.P.R. 62 (Q.B.), refd to. [para. 28].

R. v. Walsh (T.) (1996), 149 N.S.R.(2d) 169; 432 A.P.R. 169; 106 C.C.C.(3d) 462 (C.A.), refd to. [para. 29].

R. v. Bourque (M.) (1999), 221 N.B.R.(2d) 274; 567 A.P.R. 274 (C.A.), refd to. [para. 30].

R. v. Nova Scotia (Minister of Transportation and Public Works) (2002), 209 N.S.R.(2d) 39; 656 A.P.R. 39; 2002 NSPC 33, refd to. [para. 53].

R. v. Stelco, [1989] O.J. No. 3122, refd to. [para. 53].

R. v. Clark (Adam) Co., [1990] N.S.J. No. 451, refd to. [para. 54].

R. v. London (City), [1999] O.J. No. 4461, refd to. [para. 55].

R. v. Wyssen (J.) (1992), 58 O.A.C. 67; 10 O.R.(3d) 193 (C.A.), refd to. [para. 56].

R. v. Dagmar Construction Ltd., [1989] O.J. No. 1665 (C.A.), refd to. [para. 57].

R. v. Belai Brothers (Ontario) Ltd., [1993] O.J. No. 1600, refd to. [para. 58].

Ontario (Ministry of Labour) v. Bonik Inc., [1990] O.J. No. 2052, dist. [para. 104].

Authors and Works Noticed:

Freeman, David C., Double Jeopardy Protection in Canada: A Consideration of Development, Doctrine and Current Controversy (1988), 12 C.L.J. 3, pp. 10, 11, 12 [para. 9].

Counsel:

R. Woodburn, for the Crown;

Duncan Beveridge, Q.C., for the defendant.

This matter was heard on October 21 to 24 and December 12, 2002, in Halifax, Nova Scotia, before Tufts, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision on March 28, 2003.