R. v. Tricell Construction Ltd., 2008 NSPC 31

• Judge: Crawford, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: March 31, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSPC 31;(2008), 268 N.S.R.(2d) 269 (PC)

R. v. Tricell Constr. Ltd. (2008), 268 N.S.R.(2d) 269 (PC);

    857 A.P.R. 269

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JN.031

R. v. Tricell Construction Limited

(1778023; 1778026; 1778028; 1778030; 2008 NSPC 31)

Indexed As: R. v. Tricell Construction Ltd.

Nova Scotia Provincial Court

Crawford, P.C.J.

June 11, 2008.

Summary:

The defendant company was a contractor working on a condominium construction project when an on-looker visiting the site fell through an opening at the second floor stairwell and was seriously injured. The defendant was charged with four counts under regulations made pursuant to the Occupational Health and Safety Act.

The Nova Scotia Provincial Court found the defendant guilty of all four counts.

Trade Regulation - Topic 7703.1

Industrial safety - General - Work area defined - The defendant company was a contractor working on a condominium construction project when an on-looker visiting the site fell through an opening at the second floor stairwell and was injured - The defendant was charged with failing "to ensure that a guardrail was provided around an uncovered opening in a floor or other surface where a person was exposed to the hazard of a fall described in s. 7(1) of the Fall Protection and Scaffolding Regulations as prescribed by s. 9(1) of the Fall Protection and Scaffolding Regulations" - The defendant argued that a guardrail was not necessary on the second floor stairwell because it was not a "work area" - The defendant submitted that although workers had been in the area earlier that week or that day passing materials and equipment up through the stairwell, at the time in question there was no work being done on the second floor, and accordingly no one was "stationed" on the second floor at the time - The Nova Scotia Provincial Court held that the defendant's argument focussed too narrowly on the moment of the accident - The court stated that "It takes time to erect and take down guardrails; if they were required when workers were stationed there earlier in the day or week, they should have remained in place until all possible work in the area was completed or more permanent provisions for safety were made, such as stairs and railings, whether or not work was being performed there at any particular moment" - See paragraphs 40 to 44.

Trade Regulation - Topic 7742.1

Industrial safety - Duty of care - Subcontractors - The defendant company was a contractor working on a condominium construction project when an on-looker visiting the site fell through an opening at the second floor stairwell and was injured - The defendant was charged with four counts under regulations made pursuant to the Occupational Health and Safety Act - The defendant argued that it was not its responsibility, but that of the general contractor, to provide guardrails and/or secure coverings in the stairwell - The Nova Scotia Provincial Court stated that under the Occupational Health and Safety Act, responsibility for the health and safety of employees was a joint responsibility of everyone connected to the workplace, as set out in s. 2 - Therefore, the fact that the defendant was only one of several contractors on the site, or that it was merely a subcontractor to the general contractor, did not lessen its responsibility for safety within the limits of its authority and ability - The defendant had the authority to properly secure the stairwell, and it was within its ability to do so - It could not escape liability by pointing the finger at others who may also have been remiss in their duties - See paragraphs 81 to 83.

Trade Regulation - Topic 7883.1

Industrial safety - Particular offences - Failure to take adequate precautions to ensure safety of pedestrian or other person at or near workplace - The defendant company was a contractor working on a condominium construction project when an on-looker visiting the site (Dunham) fell through an opening at the second floor stairwell and was injured - The defendant was charged with failing to "take adequate precautions to ensure the safety of a pedestrian or other person at or near the workplace, where the project may cause a hazard to the pedestrian or other person at or near the workplace, as prescribed by s. 155 of the Occupational Safety General Regulations" - The Nova Scotia Provincial Court found the defendant guilty of the charge - The failure to cleat or otherwise secure the Peri panel portion of the stairwell covering created a risk which the acting mind of the defendant, not only should have foreseen, but in fact did foresee - The defendant failed to take adequate precautions for the safety of Dunham - See paragraphs 62 to 72.

Trade Regulation - Topic 7884.1

Industrial safety - Particular offences - Failure to ensure that floor, stairway, passageway or similar walking surface designed, constructed and maintained so as not to create a hazard - The defendant company was a contractor working on a condominium construction project when an on-looker visiting the site fell through an opening at the second floor stairwell and was injured - The defendant was charged with failing "to ensure that a floor, stairway, passageway or similar walking surface was designed, constructed and maintained so as not to create a hazard to a person at the workplace, as prescribed by s. 139(1) of the Occupational Safety General Regulations" - The defendant argued that (1) the Crown did not prove that the stairwell covering was a floor, stairway, passageway or similar walking surface; and (2) if it was, it was constructed and maintained so as not to cause a hazard - The Nova Scotia Provincial Court found that the coverings were a floor, stairway, passageway or similar walking surface within the meaning of s. 139(1) - The court also found that an unsecured Peri panel covering the stairwell clearly created the hazard of a fall - The Crown had therefore established the actus reus of failing to ensure construction or maintenance of a walking surface so as not to create a hazard - See paragraphs 49 to 61.

Trade Regulation - Topic 7888

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

Trade Regulation - Topic 7888

Industrial safety - Particular offences - Failure to provide and maintain platform, scaffold or fall protection - The defendant company was a contractor working on a condominium construction project when an on-looker visiting the site fell through an opening at the second floor stairwell and was injured - The defendant was charged with failing "to ensure where temporary flooring was used it was securely fastened to and supported on members that are able to withstand four times the maximum load likely to be imposed on the temporary flooring, as prescribed by s. 14(2) of the Fall Protection and Scaffolding Regulations" - The defendant argued that (1) the Crown had not proven that the stairwell covering was temporary flooring as defined in the Occupational Health and Safety Act and the Regulations; and (2) if it was temporary flooring it was securely fastened, except for a Peri panel, which was exempted under s. 14(2)(a) of the Regulations as an opening necessary for the carrying out of work - The Nova Scotia Provincial Court found that the stairwell coverings constituted temporary flooring within the meaning of the Regulations - The Peri panel was not properly secured and the Crown had proven the actus reus of the offence beyond a reasonable doubt - See paragraphs 23 to 35.

Trade Regulation - Topic 7888

Industrial safety - Particular offences - Failure to provide and maintain platform, scaffold or fall protection - The defendant company was a contractor working on a condominium construction project when an on-looker visiting the site fell through an opening at the second floor stairwell and was injured - The defendant was charged with failing "to ensure that a guardrail was provided around an uncovered opening in a floor or other surface where a person was exposed to the hazard of a fall described in s. 7(1) of the Fall Protection and Scaffolding Regulations" - The defendant argued that a guardrail was not necessary on the second floor stairwell because the second floor was only 2.8 metres, not 3 metres, above the first floor (s. 7(1)(a) of the Regulations) - The Nova Scotia Provincial Court held that although the height of the fall was less than three metres, fall protection was required in this stairwell under s. 7(1)(b) of the Regulations ("where a person is exposed to the hazard of falling from a work area that is ... above a surface or thing that could cause injury to the person upon contact") - The court held that a concrete floor was not a "safe surface" within the meaning of s. 7(1)(a) and that it was "a surface ... that could cause injury ... upon contact" within the meaning of s. 7(1)(b) - See paragraphs 37 to 39.

Trade Regulation - Topic 7888

Industrial safety - Particular offences - Failure to provide and maintain platform, scaffold or fall protection - The defendant company was a contractor working on a condominium construction project when an on-looker visiting the site fell through an opening at the second floor stairwell and was injured - The defendant was charged with failing "to ensure that a guardrail was provided around an uncovered opening in a floor or other surface where a person was exposed to the hazard of a fall described in s. 7(1) of the Fall Protection and Scaffolding Regulations as prescribed by s. 9(1) of the Fall Protection and Scaffolding Regulations" - The defendant argued that a guardrail was not necessary on the second floor stairwell because it fell under the exemption in s. 9(6) of the Regulations - The Nova Scotia Provincial Court rejected the argument - The Peri panel portion of the stairwell covering did not meet the requirement under s. 9(6)(b) that it be secured to prevent lateral movement - Since the Peri panel was not securely fastened, a guardrail was required - See paragraphs 45 to 48.

Cases Noticed:

R. v. Meridian Construction Inc. et al. (2004), 228 N.S.R.(2d) 41; 723 A.P.R. 41; 38 C.L.R.(3d) 273; 2004 CarswellNS 459; 2004 NSPC 51, consd. [para. 41].

Colpron v. Canadian National Railway Co., [1934] S.C.R. 189, refd to. [para. 67].

Ontario Ministry of Correctional Services and Ontario Public Service Employees Union, Re (1986), 27 L.A.C.(3d) 233, refd to. [para. 68].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 40 C.C.C.(2d) 533; 3 C.R.(3d) 30; 7 C.E.L.R. 53; 85 D.L.R.(3d) 161, refd to. [para. 74].

Statutes Noticed:

Fall Protection and Scaffolding Regulations - see Occupational Health and Safety Act Regulations (N.S.).

Occupational Health and Safety Act, S.N.S. 1996, c. 7, sect. 2 [para. 81].

Occupational Health and Safety Act Regulations (N.S.), Fall Protection and Scaffolding Regulations, Reg. 2/96, sect. 3(aq) [para. 25]; sect. 3(at) [para. 40]; sect. 7(1) [para. 37]; sect. 9(1) [para. 45]; sect. 9(6) [para. 46]; sect. 14 [para. 24].

Occupational Health and Safety Act Regulations (N.S.), Occupational Safety General Regulations, sect. 139(1) [para. 50]; sect. 155 [para. 63].

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

Counsel:

Peter Craig, for the Crown;

Noella Martin, for the defence.

This matter was heard on March 31, 2008, at Lunenberg, N.S., and on April 1-3, 2008, at Bridgewater, N.S., before Crawford, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on June 11, 2008.