R. v. Meridian Construction Inc. et al., 2004 NSPC 51

• Judge: Tufts, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: June 09, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSPC 51;(2004), 228 N.S.R.(2d) 41 (PC)

R. v. Meridian Constr. Inc. (2004), 228 N.S.R.(2d) 41 (PC);

 723 A.P.R. 41

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. NO.030

Her Majesty the Queen v. Meridian Construction Inc.

Her Majesty the Queen v. Mr. Donald London

(1306087-89; 1306080-81; 2004 NSPC 51)

Indexed As: R. v. Meridian Construction Inc. et al.

Nova Scotia Provincial Court

Tufts, P.C.J.

October 18, 2004.

Summary:

During the construction of a school, a worker fell onto a skylight opening that was covered by rigid styrofoam board insulation. The worker went through the styrofoam and fell 30 feet onto an ice covered concrete floor. He died from his injuries. The general contractor (MCI) and the site supervisor were charged with failing to take every reasonable precaution in the circumstances to ensure that a method of fall protection was in place at the skylight openings (count 1). They were also charged with failing to ensure that guardrails were installed on the open side of a mezzanine (count 2). MCI was also charged with failing to take every reasonable precaution in the circumstances to ensure the health and safety of persons at or near a project (count 3). Count 3 related to MCI's alleged failure to take corrective action for hazards identified by workers.

The Nova Scotia Provincial Court found MCI and London guilty on count 1, but not guilty on count 2. The court also found MCI not guilty on count 3.

Trade Regulation - Topic 7703.1

Industrial safety - General - Work area defined - During the construction of a school, a second floor mezzanine was completely open - Although a rope marked the edge - There were no guardrails on the mezzanine's edge - At the material time, there was no particular work activity occurring on the mezzanine, but workers used the mezzanine to access the roof - Section 9(1)(b) of the Fall Protection and Scaffolding Regulations required a guardrail "at the perimeter or other open side of (i) a floor, mezzanine, balcony or other surface, and (ii) a work area, where a person is exposed to the hazard of a fall ..." - "Work area" was defined as a workplace location "at which an employee is, or may be required or permitted to be, stationed and includes a work platform" - The Nova Scotia Provincial Court held that the "and" in s. 9(1)(b) was conjunctive and the requirement to erect a guardrail at the open side of the floor contemplated that it be in a "work area" - The mezzanine was not a work area - Workers travelling through the area were not "stationed" as contemplated by the definition - See paragraphs 46 to 52.

Trade Regulation - Topic 7883

Industrial safety - Particular offences - Failure to ensure health and safety of workers - MCI was the general contractor in the construction of a school - Large portions of snow accumulated in the centre core because there were open windows and the roof had not been completed in that area - The snow became packed down and ice formed in some areas - The ice and snow issue was raised at safety meetings - MCI had sand spread over the travelled portion of the centre core and an employee shovelled some snow away to allow safer passage - The Nova Scotia Provincial Court held that it was not satisfied beyond a reasonable doubt that MCI failed to take every reasonable precaution to ensure the health and safety of workers with respect to the ice and snow - The areas had travelled pathways that were reasonably clear and did not appear to be unsafe - During the material times, the weather was extremely cold and to heat the building or to have the area subject to a Steam Jenny would have been impractical given the risk of the melted snow freezing and causing a greater hazard - See paragraphs 58 to 61.

Trade Regulation - Topic 7883

Industrial safety - Particular offences - Failure to ensure health and safety of workers - MCI was the general contractor in the construction of a school - MCI was charged with failing to take every reasonable precaution in the circumstances to ensure the health and safety of persons at or near a project - In particular, it was alleged that MCI, inter alia, failed to provide adequate lighting - The Nova Scotia Provincial Court rejected the allegation - The power supply to the building had been delayed and the building was not at a level of construction to allow for permanent lighting to be used - MCI provided temporary lighting and installed pigtail lighting where necessary - See paragraphs 62 to 65.

Trade Regulation - Topic 7884

Industrial safety - Particular offences - Failure to take every reasonable precaution - During the construction of a school, skylight openings were cut in the roof - A subcontractor (CMC) removed plywood sheets covering the openings and replaced them with rigid styrofoam board insulation - A moderate snow cover obstructed the styrofoam coverings' presence - A worker fell onto the styrofoam, went through and fell 30 feet to the floor - He died of his injuries - The Nova Scotia Provincial Court found the general contractor (MCI) and the site supervisor (London) guilty of failing to take every reasonable precaution to ensure that a method of fall protection was in place at the openings - London was aware of the hazard several days before the accident - Given the extremely dangerous nature of the situation, anything short of immediate action to ensure that the openings were securely covered prior to the workers going onto the roof was not reasonable - Further, London and MCI failed to ensure that: CMC held regular "toolbox" meetings wherein safety concerns were raised, documented and forwarded to MCI, London and others; a proper inspection of CMC's work was completed respecting the openings; and a system of formal reporting of safety concerns was in place for MCI employees - See paragraphs 36 to 45.

Trade Regulation - Topic 7884

Industrial safety - Particular offences - Failure to take every reasonable precaution - [See Trade Regulation - Topic 7703.1 and both Trade Regulation - Topic 7883 ].

Trade Regulation - Topic 7888

Industrial safety - Particular offences - Failure to provide and maintain work platform, scaffold or fall protection - [See Trade Regulation - Topic 7703.1 and first Trade Regulation - Topic 7884 ].

Cases Noticed:

R. v. Leil (A.W.) Cranes & Equipment (1986) Ltd. (2003), 223 N.S.R.(2d) 203; 705 A.P.R. 203; 2003 NSPC 60, refd to. [para. 17].

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. 3(ah) [paras. 16, 51]; sect. 9(1)(b) [paras. 16, 50].

Counsel:

Richard M. Hartlen and Alonzo Wright, for the Crown;

David Bright, Q.C., and David Doyle, for the defendants.

This matter was heard on February 10, 11, 12, 16, 17, 25 and 26 and June 9, 2004, by Tufts, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision on October 18, 2004.