R. v. McCarthy's Roofing Ltd., (2016) 377 N.S.R.(2d) 135 (PC)

• Judge: Derrick, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: September 13, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 377 N.S.R.(2d) 135 (PC);2016 NSPC 52

R. v. McCarthy's Roofing Ltd. (2016), 377 N.S.R.(2d) 135 (PC);

    1187 A.P.R. 135

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. SE.009

Her Majesty the Queen v. McCarthy's Roofing Limited

(Nos. 2854099; 2854100; 2854101; 2854102; 2016 NSPC 52)

Indexed As: R. v. McCarthy's Roofing Ltd.

Nova Scotia Provincial Court

Derrick, P.C.J.

September 13, 2016.

Summary:

McCarthy's Roofing Ltd. was charged pursuant to the Occupational Health and Safety Act (OHSA) with four offences arising from an accident at a building project on September 9, 2013, when an outrigger beam fell from the penthouse roof onto Conrod, an employee of Economy Glass. The outrigger's counterbalancing weights and anchoring tether had been removed on Saturday, September 7, 2013, by McCarthy's foreperson. The Crown submitted that McCarthy's failed to tell anyone that the outrigger had been dismantled with the effect that the Economy Glass employees did not know it was no longer secured. McCarthy's raised various challenges to the charges and denied any failure of its obligations under the OHSA. It also sought a stay of the charges, claiming a violation by the Crown of its duty to disclose, i.e., a violation of s. 7 of the Charter, because some evidence obtained during the initial investigation of the accident was not available.

The Nova Scotia Provincial Court acquitted McCarthy's of all four counts. With respect to the Charter motion, the court found that there was no prejudice to McCarthy's as a result of lost evidence.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 8374 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - McCarthy's Roofing Ltd. was charged pursuant to the Occupational Health and Safety Act with four offences arising from an accident at a building project - McCarthy's sought a stay of the charges, claiming a violation by the Crown of its duty to disclose, i.e., a violation of s. 7 of the Charter, because some evidence obtained during the initial investigation of the accident was not available - The Nova Scotia Provincial Court held that the Crown's failure to establish that unacceptable negligence played no role in the loss of the evidence meant its disclosure obligations were not met and there had accordingly been a breach of s. 7 of the Charter - Whether this was an appropriate case for a stay of proceedings required the court to examine the issue of prejudice: was McCarthy's right to full answer and defence compromised by not having the statements - The court found there was no prejudice to McCarthy's as a result of lost evidence - See paragraphs 161 to 224.

Trade Regulation - Topic 7704

Industrial safety - General - Constructor defined - McCarthy's Roofing Ltd. was charged pursuant to the Occupational Health and Safety Act with four offences arising from an accident at a building project on September 9, 2013, when an outrigger beam fell from the penthouse roof onto Conrod, an employee of Economy Glass - The outrigger's counterbalancing weights and anchoring tether had been removed on Saturday, September 7, 2013 by McCarthy's foreperson - Counts 1 and 2 alleged that McCarthy's failed as "a constructor" "to take every reasonable precaution to ensure the health and safety of a person at a workplace" and "to ensure communication between the employers and self-employed persons at the project of information necessary to the health and safety of persons at the project" - The Nova Scotia Provincial Court concluded that McCarthy's could not be characterized as a "constructor" - It did not have any of the authority at the project that a "constructor" was contemplated by the legislation to have - The Crown's failure to prove this essential element of counts 1 and 2 led to acquittals on those charges - See paragraphs 89 to 147.

Trade Regulation - Topic 7871

Industrial safety - Offences - Evidence - McCarthy's Roofing Ltd. was charged pursuant to the Occupational Health and Safety Act with four offences arising from an accident at a building project on September 9, 2013, when an outrigger beam fell from the penthouse roof onto Conrod, an employee of Economy Glass - The outrigger's counterbalancing weights and anchoring tether had been removed on Saturday, September 7, 2013 by McCarthy's foreperson - Count 4 alleged that McCarthy's failed to ensure that the outrigger was disassembled "in accordance with the manufacturer's specifications pursuant to section 84(1) of the Occupational Safety Regulations" - The Nova Scotia Provincial Court stated that "To obtain a conviction on Count 4, the Crown had to prove beyond a reasonable doubt that McCarthy's failed to dismantle the outrigger according to the specifications of Tractel, or where Tractel's specifications do not exist, specifications certified by an engineer. As there are neither manufacturer's specifications nor engineer-certified specifications before me, I find that the Crown has not proven Count 4. I am acquitting McCarthy's on Count 4" - See paragraphs 47 to 83.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - McCarthy's Roofing Ltd. was charged pursuant to the Occupational Health and Safety Act with four offences arising from an accident at a building project on September 9, 2013, when an outrigger beam fell from the penthouse roof onto Conrod, an employee of Economy Glass - The outrigger's counterbalancing weights and anchoring tether had been removed on Saturday, September 7, 2013 by McCarthy's foreperson - The Crown submitted that McCarthy's failed to tell anyone that the outrigger had been dismantled with the effect that the Economy Glass employees did not know it was no longer secured - Counts 1 and 2 alleged that McCarthy's failed as "a constructor" "to take every reasonable precaution to ensure the health and safety of a person at a workplace" and "to ensure communication between the employers and self-employed persons at the project of information necessary to the health and safety of persons at the project" - The Nova Scotia Provincial Court found that McCarthy's was not "a constructor" on the project and the Crown's failure to prove that essential element of counts 1 and 2 led to acquittals on those charges - Had the Crown proven McCarthy's was "a constructor" as charged in counts 1 and 2, the court would have found there was no defence of due diligence - McCarthy's foreperson's actions on September 7 in dismantling the outrigger and failing to communicate that he had done so created a serious hazard - McCarthy's could not be said to have been duly diligent in ensuring the safety of workers who were unaware that the outrigger was untethered - See paragraphs 148 to 160.

Trade Regulation - Topic 7884

Industrial safety - Particular offences - Failure to take every reasonable precaution - [See Trade Regulation - Topic 7874 ].

Trade Regulation - Topic 7888

Industrial safety - Particular offences - Failure to provide and maintain work platform, scaffold or fall protection - McCarthy's Roofing Ltd. was charged pursuant to the Occupational Health and Safety Act with four offences arising from an accident at a building project on September 9, 2013, when an outrigger beam fell from the penthouse roof onto Conrod, an employee of Economy Glass - The outrigger's counterbalancing weights and anchoring tether had been removed on Saturday, September 7, 2013 by McCarthy's foreperson, Paul Fancy - The Crown submitted that McCarthy's failed to tell anyone the outrigger had been dismantled with the effect that the Economy Glass employees did not know it was no longer secured - McCarthy's was alleged in count 3 to have failed to ensure that falling object protection precautions were taken in accordance with CSA Standard Z271-10 "Safety Code for Suspended Platforms" as required by s. 23.11(1)(b) of the Workplace Health and Safety Regulations (WHSR) - The Nova Scotia Provincial Court stated that "Section 23.11(1)(b) of the WHSR is specific about what it deals with. It requires an employer to ensure that a suspended work-platform is 'designed, constructed, installed, maintained, and inspected' in accordance with CSA Standard Z271, 'Safety Code for Suspended Platforms.' ... What Paul Fancy did on September 7 is not in issue. He dismantled the outrigger. He didn't design, construct, install, maintain or inspect anything. And none of these descriptors can be reasonably interpreted to include 'dismantling.' The regulations could have included 'dismantled' in section 23.11(1)(b). They do not. I cannot simply read it in. A conviction cannot register against McCarthy's on Count 3 and I am entering an acquittal" - See paragraphs 84 to 88.

Trials - Topic 1005

Summary convictions - General - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 8374 ].

Counsel:

Alex Keaveny, for the Crown;

Brad Proctor and Michael Murphy, for the defendant.

This matter was heard on June 7-9, 13-16 and July 5, 8 and 22, 2016, before Derrick, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision on September 13, 2016.