R. v. Nova Scotia (Minister of Transporation and Public Works), (2002) 209 N.S.R.(2d) 39 (PC)

• Judge: MacDougall, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: September 30, 2002
• Jurisdiction: Nova Scotia
• Citations: (2002), 209 N.S.R.(2d) 39 (PC);2002 NSPC 33

R. v. N.S. (2002), 209 N.S.R.(2d) 39 (PC);

 656 A.P.R. 39

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. NO.034

Her Majesty The Queen v. Her Majesty The Queen, in Right of the Province of Nova Scotia, as represented by the Minister of Transportation and Public Works

(2002 NSPC 33)

Indexed As: R. v. Nova Scotia (Minister of Transporation and Public Works)

Nova Scotia Provincial Court

MacDougall, P.C.J.

September 30, 2002.

Summary:

The province contracted with BML to maintain traffic control devices based on tender documents indicating an impressive system to ensure safety. In replacing a re­paired traffic control signal, BML ad­mittedly violated the Occupational Health and Safety Act and its Regulations by operating a boom truck too close to high voltage wires. BML ignored its own safety procedures. A pro­vincial employee (oper­ations supervisor with Department of Trans­portation and Public Works) was on site solely to assist the short-staffed BML with traffic control. The prov­ince, admittedly a "constructor" and "em­ployer" under the Act, was charged with failing to take reasonable precautions to ensure the health and safety of persons at the project (s. 15(a)). The prov­ince was also charged with permitting work within three metres of an energized line, permitting work within six metres of a line without knowing its voltage and failing to ensure information, training and instruction were provided to employees at the site.

The Nova Scotia Provincial Court held that the province was guilty of the s. 15(a) offence. Although awarding the contract to BML was reasonable, the province was guilty under s. 15(a) where it failed to inde­pendently ensure that BML implemented and monitored its safety system. The province was not guilty of the remaining three of­fences.

Trade Regulation - Topic 7883

Industrial safety - Particular offences - Failure to ensure health and safety of workers - The province contracted with BML to maintain traffic control devices based on tender documents indicating an impressive safety system - In replacing a repaired traffic control signal, BML ad­mittedly violated the Occupational Health and Safety Act and its Regulations by operating a boom truck too close to high voltage wires - BML ignored its own safety procedures - A provincial employee (operations supervisor with Department of Transportation and Public Works) was on site solely to assist the short-staffed BML with traffic control - The province, ad­mittedly a "constructor" and "employer" under the Act, was charged with failing to take reasonable precautions to ensure the health and safety of persons at the project (s. 15(a)) - It was also charged with per­mitting work within three metres of an energized line, permitting work within six metres of a line without knowing its voltage and failing to ensure information, training and instruction were provided to employees at the site - The Nova Scotia Provincial Court held that the province was guilty of the s. 15(a) offence - Although awarding the contract to BML was rea­sonable, the province was guilty under s. 15(a) where it failed to independently ensure that BML implemented and moni­tored its safety system - The province was not guilty of the remaining three offences committed by BML employees - Their ac­tions were outside the scope of the sys­tem purchased by the province and the operat­ing mind or will of the province did not approve or consent to those actions in not following their own safety procedures -BML controlled its employees, not the province.

Trade Regulation - Topic 7884

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

Trade Regulation - Topic 7885.1

Industrial safety - Particular offences - Working too close to power lines - [See Trade Regulation - Topic 7883 ].

Trade Regulation - Topic 7889

Industrial safety - Particular offences - Failure to provide information, instruction, training or supervision - [See Trade Regu­lation - Topic 7883 ].

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 10].

Tesco Supermarkets v. Nattras, [1971] 2 All E.R. 127 (C.A.), refd to. [para. 13].

R. v. Stelco Inc., [1989] O.J. No. 3122, refd to. [para. 16].

R. v. Clarke (Adam) Co., [1990] N.S.J. No. 451, refd to. [para. 16].

R. v. Napanee (Town), [1990] O.J. No. 731, refd to. [para. 16].

R. v. London (City), [1999] O.J. No. 4461, refd to. [para. 16].

R. v. Wyssen (J.) (1992), 58 O.A.C. 67; 10 O.R.(3d) 193 (C.A.), refd to. [para. 16].

R. v. Dagmar Construction Ltd., [1989] O.J. No. 1665 (C.A.), refd to. [para. 16].

R. v. Pierman et al. (1990), 37 C.L.R. 256, refd to. [para. 16].

R. v. Belai Brothers (Ontario) Ltd., [1993] O.J. No. 1600, refd to. [para. 16].

R. v. Barrington Lane Development Ltd. et al. (1994), 129 N.S.R.(2d) 92; 362 A.P.R. 92 (Prov. Ct.), refd to. [para. 16].

R. v. Eisner Contracting Ltd. (1994), 135 N.S.R.(2d) 119; 386 A.P.R. 119 (Prov. Ct.), refd to. [para. 16].

Nova Scotia (Attorney General) v. Nova Scotia (Minister of Supply and Services) (1997), 157 N.S.R.(2d) 295; 462 A.P.R. 295 (C.A.), refd to. [para. 16].

Imperial Oil Ltd., Re, [1993] O.O.H.S.A.D. No. 8, refd to. [para. 16].

R. v. White (1988), 93 A.R. 254 (Q.B.), refd to. [para. 16].

Statutes Noticed:

Occupational Health and Safety Act, S.N.S. 1996, c. 7, sect. 2, sect. 3(f), sect. 3(p), sect. 23, sect. 76 [para. 9].

Counsel:

Richard Hartlen, for the prosecution;

A. William Moreira, for the defence.

This case was heard before MacDougall, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment of September 30, 2002.