QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 269 Date: 2016 08 19 Docket: NJ 33 of 2013 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and VITERRA INC. Counsel: Douglas G. Curliss, Q.C. and Rochelle C. Wempe for the Crown Peter T. Bergbusch and Kevin T. Miller for Viterra Inc. DECISION CURRIE J. August 19, 2016 [1] On September 8, 2011 Paul Cruse was employed at grain terminal near Rosetown, Saskatchewan that was owned and operated by the accused, Viterra Inc. On that day Mr. Cruse entered grain receiving pit in the terminal, where he was engulfed in grain and consequently died of suffocation. [2] Viterra is charged under the Canada Labour Code, RSC 1985, L-2 in connection with this incident. The indictment sets out the following six counts: 1. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to ensure that the health and safety at work of every person employed by it, namely Paul Cruse, was protected, by failing to instruct Paul Cruse on how to unplug blockage inside receiving pit of grain elevator in manner that provided for his health and safety directly resulting in Paul Cruse’s death contrary to s. 124 of the Canada Labour Code and thereby committing an offence contrary to subsection 148(2) of the Canada Labour Code. 2. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to ensure that the health and safety at work of every person employed by it, namely Paul Cruse, was protected, by failing to instruct Paul Cruse on how to unplug blockage inside receiving pit of grain elevator in manner that provided for his health and safety, contrary [sic] s. 124 of the Canada Labour Code and thereby committing an offence contrary to subsection 148(1) of the Canada Labour Code. 3. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to provide proper training and supervision necessary to ensure that the health and safety of an employee, namely Paul Cruse, was protected, by failing to ensure that Paul Cruse had the necessary training and supervision to ensure his health and safety when responding to blockage inside the receiving pit of grain elevator as required by paragraph 125(1)(q) of the Canada Labour Code and prescribed by subsection 19.6(2) of the Canada Occupational Health and Safety Regulations, which failure directly resulted in the death of employee Paul Cruse, thereby committing an offence contrary to subsection 148(2) of the Canada Labour Code. 4. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to provide proper training and supervision necessary to ensure that the health and safety of an employee, namely Paul Cruse, was protected, by failing to ensure that Paul Cruse had the necessary training and supervision to ensure his health and safety when responding to blockage inside the receiving pit of grain elevator as required by paragraph 125(1)(q) of the Canada Labour Code and prescribed by subsection 19.6(2) of the Canada Occupational Health and Safety Regulations, thereby committing an offence contrary to subsection 148(1) of the Canada Labour Code. 5. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to ensure that employee Paul Cruse was made aware of every known or foreseeable health or safety hazard, namely the hazard of being engulfed by free flowing granular material in particular the contents of receiving pit at grain elevator, as required by paragraph 125(1)(s) of the Canada Labour Code which directly resulted in the death of employee Paul Cruse, thereby committing an offence contrary to subsection 148(2) of the Canada Labour Code. 6. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to ensure that employee Paul Cruse was made aware of every known or foreseeable health or safety hazard, namely the hazard of being engulfed by free flowing granular material in particular the contents of receiving pit at grain elevator, as required by paragraph 125(1)(s) of the Canada Labour Code thereby committing an offence contrary to subsection 148(1) of the Canada Labour Code. A. Provisions of the Code and Regulations [3] As set out in the above counts, Viterra is charged with respect to ss. 124, 125(1)(q) and (s), 148(1) and (2) of the Code: 124 Every employer shall ensure that the health and safety at work of every person employed by the employer is protected. 125(1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in work place that is not controlled by the employer, to the extent that the employer controls the activity, ... (q) provide, in the prescribed manner, each employee with the information, instruction, training and supervision necessary to ensure their health and safety at work; ... (s) ensure that each employee is made aware of every known or foreseeable health or safety hazard in the area where the employee works; 148(1) Subject to this section, every person who contravenes provision of this Part is guilty of an offence ... (2) Every person who contravenes provision of this Part the direct result of which is the death of, serious illness of or serious injury to an employee is guilty of an offence ... [4] The counts against Viterra also refer to s. 19.6(2) of the Canada Occupational Health and Safety Regulations, SOR/86-304: 19.6(2) The employer shall provide education to an employee (a) whenever new hazard information in respect of hazard in the work place becomes available to the employer; and (b) shortly before the employee is assigned new activity or exposed to new hazard. [5] Of relevance in this matter is the defence of due diligence, referred to in s. 148(4) of the Code: 148(4) On prosecution of person for contravention of any provision of this Part, except paragraphs 125(1)(c), (z.10) and (z.11), it is defence for the person to prove that the person exercised due care and diligence to avoid the contravention. B. Onus of proof [6] The Crown bears the onus of proving, beyond reasonable doubt, the actus reus of each count. If it does so the offence is proven unless Viterra proves, on balance of probabilities, that it exercised due care and diligence to avoid the contravention (due diligence): Saskatchewan Wheat Pool, 2000 SKCA 73 (CanLII) at para 6, 199 Sask 97 [Saskatchewan Wheat Pool CA]. [7] Relying on decision of this court in Saskatchewan Wheat Pool (1999), 1999 CanLII 12942 (SK QB), 185 Sask 114 (QB) [Saskatchewan Wheat Pool QB] at paras 13 and 27, the Crown says that proof of injury or death is prima facie proof of violation of occupational health and safety legislation. That is, says the Crown, once the Crown proves beyond reasonable doubt that worker was injured or killed, the actus reus is proven, and so the offence is proven unless the accused demonstrates that it exercised due diligence. [8] In Saskatchewan Wheat Pool QB, the charges arose out of an incident in which, in the course of repair to large fan, an employee was injured by the moving fan blade. Justice Krueger addressed two counts under the Code. Count alleged that the accused appellant failed to ensure that the safety and health of every employee was protected in that the appellant failed to ensure that the repair work on the fan was performed in proper manner. Count alleged that the appellant failed to provide to employees the training and supervision necessary to ensure their safety and health. [9] Dealing with count 1, Justice Krueger said at para. 13: 13 agree with the trial judge that actus reus in count #1 has been proven beyond reasonable doubt, although not for the reasons stated by the trial judge. The fact that Greer suffered serious injury at work is evidence that the appellant did not ensure his safety and health as required. ... (emphasis added) [10] As to the charge of failing to ensure the health and safety of worker, then, Justice Krueger ruled that proving an injury to the worker proves that the employer did not ensure his health and safety proves the actus reus. [11] Shortly after Justice Krueger released that decision, though, the Court of Appeal addressed proof of the actus reus in Saskatchewan Wheat Pool CA, dealing with different incident than that dealt with in Justice Krueger’s decision. At para. Justice Sherstobitoff described with approval the trial judge’s analysis on that point: The trial judge held that s. 124 creates strict liability offence, one that is proved upon establishing the actus reus beyond reasonable doubt, leaving defence of due diligence to be proved by the defendant on balance of probabilities. The trial judge rejected the idea that mere proof of an accident was sufficient to prove the actus reus before shifting the burden of proof of due diligence to the defendant. Rather, the trial judge said that the Crown must first prove beyond reasonable doubt an apparent or prima facie breach of the duty of care [under s. 124] to ensure the safety and health at work of the employee. Obviously this apparent or prima facie breach would be from an objective standpoint, the standpoint of the reasonable and well-informed onlooker. The statute imposes on the employer duty to take all reasonable steps to ensure employee health and safety. And the law is in my opinion that the Crown must prove beyond reasonable doubt in this case that prima facie breach of that duty of care has occurred. Once it does that, and only if it does that, will the onus shift to the accused to show on balance of probabilities that he showed due diligence or took reasonable care. [12] Given the Court of Appeal’s approval of these remarks, I do not accept the Crown’s position that proof of a worker injury or death necessarily proves the actus reus of failing to ensure the health and safety of an employee. [13] In any event, Viterra is not charged with only the general allegation that it failed to ensure the health and safety of Mr. Cruse. Rather, counts and allege the manner in which Viterra failed to ensure his health and safety. Viterra is charged that it failed to ensure his health and safety “by failing to instruct Mr. Cruse on how to unplug blockage inside receiving pit of grain elevator in manner that provided for his health and safety”. Mr. Cruse’s death does not necessarily establish that Viterra failed to adequately instruct him on how to unplug blockage inside receiving pit. Similarly, each of the counts 3, 4, and sets out particulars of how Viterra is alleged to have failed in its obligations. [14] The actus reus that the Crown must prove, beyond reasonable doubt, may be summarized as follows: (a) failing to instruct Mr. Cruse on how to unplug blockage in receiving pit (counts and 2); (b) failing to train and supervise Mr. Cruse so as to ensure his health and safety when responding to blockage in receiving pit (counts and 4); and (c) failing to ensure that Mr. Cruse was made aware of the hazard of being engulfed in grain in receiving pit (counts and 6). [15] As have noted, if the actus reus on any of these counts is proved, there remains the prospect of the defence of due diligence applying to them. C. Witnesses [16] Before set out the circumstances of the incident must address the evidence of some witnesses. This is because my findings as to the circumstances depend in part on the reliability or otherwise of the evidence of some witnesses. [17] Many witnesses testified at the trial, and received the videotaped and written evidence of one person, Bob Barrie, who died before trial. must discuss the evidence of three of these witnesses, being Bob Barrie, Clint Charlie and Art Garrett. [18] Bob Barrie was delivering grain to the terminal at the time of the incident. His truck was parked at the entrance to the terminal’s drive-in bay area, the location of the receiving pit that Mr. Cruse entered. [19] Mr. Barrie was interviewed by an RCMP officer on September 8, 2011, the day of the incident, and on that day he signed written statement. He was interviewed again on November 3, 2011, this time by federal Occupational Health and Safety officer, and on that day as well he signed written statement. Subsequently Mr. Barrie was diagnosed with cancer. He agreed to undergo videotaped interview by an RCMP officer, and that interview was conducted July 11, 2013. Mr. Barrie died December 24, 2013. [20] At the time of the incident Mr. Barrie was self-employed contract driver, having previously had career as an RCMP officer. In addressing his evidence consider that as former RCMP officer he had training and experience in observing events, sometimes under circumstances of duress. As well, from the testimony of those who interviewed him and from my observations of him in the videotaped interview conclude that on the three occasions of giving statement Mr. Barrie was equally cogent and able to remember and relate what he had seen on September 8, 2011. [21] Nonetheless, within and among his three statements there are some minor inconsistencies. If they were the only inconsistencies, they would not cause me to doubt the reliability of Mr. Barrie’s statements. When consider them along with other concerns, however, they become pertinent. [22] The minor inconsistencies are these: (a) On November 3, 2011 Mr. Barrie said that he was hauling peas on September 8, 2011, but on July 11, 2013 he said that he was hauling canola. (b) On July 11, 2013 Mr. Barrie emphasized that, on September 8, 2011, Mr. Charlie did not refer to Mr. Cruse as “young fella”, but later in that interview he agreed that Mr. Charlie did refer to Mr. Cruse as “young fella”. (c) On September 8, 2011 Mr. Barrie said that he knew Mr. Cruse “just from the elevator”, meaning the Viterra terminal, but on November 3, 2011 he said, in agreeing that he knew Mr. Cruse, “Yes. know the family. Casual.” On July 11, 2013 Mr. Barrie said that he had known Mr. Cruse for quite few years, and that they used to be neighbours at the lake. [23] note also that on July 11, 2013 Mr. Barrie provided details that he had not provided previously. This could be nothing more than result of having full-length videotaped interview, except that one of those details is significant part of the narration of what Mr. Barrie saw Mr. Cruse do detail that he reasonably would be expected to have included in giving his earlier statements. This detail is Mr. Barrie’s observation that Mr. Cruse, after opening the hatch to the receiving pit, and after tossing down tool, “kinda looked around” before starting to climb down the ladder into the pit. Mr. Barrie related this detail on July 11, 2013, but he had not related it on September 8, 2011 or November 3, 2011. [24] Most significant is an inconsistency in Mr. Barrie’s recollection as to the order in which certain events took place, some specifically relating to Mr. Cruse’s location. On September 8, 2011 Mr. Barrie said that he saw Mr. Cruse immediately upon pulling his truck up to the drive-in bay area of the terminal, while Mr. Barrie was still in his truck. On November 3, 2011, though, Mr. Barrie said that on arriving at the drive-in bay area he got out of his truck and went into the terminal office, and that it was there that he saw Mr. Cruse. On July 11, 2013 Mr. Barrie said that Mr. Cruse was in the terminal office when Mr. Barrie entered it, but later in that interview he said that Mr. Cruse walked into the office after Mr. Barrie had entered it. [25] Taken together, these inconsistencies leave me unsure about the accuracy and reliability of Mr. Barrie’s evidence. Having misremembered or inaccurately related these elements of his recollection, he well may have misremembered or inaccurately related other elements. [26] The details of what people did and said in the moments before Mr. Cruse’s death are important. cannot be confident in the accuracy of what Mr. Barrie said that he saw and heard regarding the incident. Not everything that he related can be accurate, and have no way knowing which parts are accurate and which parts are not. Consequently, cannot and do not rely on any of Mr. Barrie’s evidence. [27] Clint Charlie was assistant manager of the terminal at the time of the incident. He was present during the events, and he had interaction with both Mr. Cruse and Mr. Barrie. There were some inconsistencies in Mr. Charlie’s evidence. As well, recognize that, in testifying, he may have been subject to natural tendency to want to avoid appearing to have made any mistakes that contributed to the incident. Bearing these factors in mind, though, still found Mr. Charlie to have testified overall in frank and honest manner. concluded that his description of events was reliable and largely accurate. In particular, on the topic of his interactions with Mr. Cruse and with Mr. Barrie accept that Mr. Charlie has accurately related what occurred and was said. [28] Art Garrett was manager of the terminal at the time of the incident. He was not present at the time of the incident, being away at company meeting in another province. In the course of his direct and cross-examinations some deficiencies were revealed in the operation of the terminal that Mr. Garrett managed. Some of those deficiencies related to matters of employee safety, as will discuss. Nonetheless, overall found Mr. Garrett to be honest and credible in testifying. accept his evidence. D. Circumstances of the incident [29] Trucks making grain deliveries to the terminal enter large drive-in bay area. The terminal has two grain receiving pits that are located immediately below the floor of that bay area. grain truck enters one of the two doors to the drive-in bay area and dumps grain through grates in the floor, into the receiving pit below. In September 2011 each receiving pit funneled grain through screen that was located about 20 feet below the bay area floor. The grain passed through the screen to bucket elevators (called “legs”) that carried the grain to various bins. [30] Late in the morning of September 8, 2011, around the time that Mr. Barrie had driven up to the drive-in bay area at receiving pit 2, Mr. Charlie was in the terminal’s control room, which looked out onto the drive-in bay area. He noted that, according to the instruments in the control room, the grain in receiving pit was flowing very slowly. That instrument reading indicated to him either that the pit was empty or that there was blockage at the screen at the bottom of the pit, preventing grain from emptying into the legs. [31] About an hour earlier that morning, Mr. Charlie had made the same observation. On that occasion he asked Mr. Cruse “to look into the pit to see if there was any product in there or if it was blocked in any way.” Using flashlight, Mr. Cruse looked into the receiving pit through the grate from above the pit, and he reported that there was just some minor build-up, but virtually no grain in the pit. Mr. Charlie then decided to dump the next load of grain into the pit, to flush out the minor build-up. [32] About an hour later, when Mr. Barrie had arrived to make delivery, and when Mr. Charlie again saw that the grain was flowing very slowly, Mr. Charlie again told Mr. Cruse to look into the receiving pit. He told Mr. Cruse “to take the flashlight and look in the pit to see if there was grain or if it was empty.” Mr. Charlie then walked over to Mr. Barrie’s truck, where he stepped up onto the step at the driver’s door of the truck and asked Mr. Barrie not to pull into the drive-in bay area because they were checking whether the receiving pit was blocked. [33] Sixty to ninety seconds elapsed between the moment that Mr. Charlie told Mr. Cruse to look into the receiving pit and the moment that one of the terminal employees realized that Mr. Cruse was in the pit. The evidence does not establish all of what Mr. Cruse did in that period. It is clear, though, that at some point he went to hatch that was off to the side of the bay area the hatch that led down to the pit. He opened the hatch, he climbed down and he stepped onto the grain that had accumulated in the pit. When he stepped onto the grain he was immediately engulfed and he suffocated. E. Actus reus [34] As have set out above, the actus reus that the Crown must prove, beyond reasonable doubt, may be summarized as follows: (a) failing to instruct Mr. Cruse on how to unplug blockage in receiving pit (counts and 2); (b) failing to train and supervise Mr. Cruse so as to ensure his health and safety when responding to blockage in receiving pit (counts and 4); and (c) failing to ensure that Mr. Cruse was made aware of the hazard of being engulfed in grain in receiving pit (counts and 6). [35] The Crown asks me to find, as fact, that Mr. Charlie told Mr. Cruse to deal with the blocked receiving pit. In doing so, the Crown relies on Mr. Barrie’s recollection that Mr. Charlie had indicated to Mr. Barrie that if the pit were blocked Mr. Cruse would have to go down into the pit to clear the blockage. have explained that do not accept the accuracy of Mr. Barrie’s evidence. Therefore, on that basis alone do not accept that Mr. Charlie made this remark to Mr. Barrie. [36] Further, accept Mr. Charlie’s evidence. He said that he would not have told Mr. Cruse or anyone to go down into the pit to clear blockage, because it is not possible to clear such blockage from inside the pit. What he did tell Mr. Cruse is set out above. [37] Even if were giving some weight to Mr. Barrie’s evidence, with respect to this point would not accept his recollection that Mr. Charlie had made such remark. Because of my greater confidence in the accuracy of Mr. Charlie’s evidence, and because of his logical explanation as to why he would not have asked anyone to go into the pit, would prefer the evidence of Mr. Charlie as being more reliable and accurate as to what actually occurred. [38] The Crown argues, though, that in any event may infer, from Mr. Cruse’s having entered the receiving pit, that Viterra did not adequately instruct, train, supervise and inform him. Logic, says the Crown, tells us that if Mr. Cruse had been adequately instructed, trained, supervised and informed he would not have entered the receiving pit without following the safety procedures. [39] There is an attraction to the simple logic of this argument. am not sure that it is accurate or fair, though. It ignores the fact that sometimes people make mistakes, despite their training and education. 1. Training and education [40] Mr. Cruse began his employment at the Viterra terminal on May 24, 2011. Before he started actually working in the facility, he underwent some training and education. He took computer based training (CBT). This involved his working through series of training modules on computer. The modules related to various topics including safety, the dangers inherent in grain terminal, the dangers relating to entering confined space such as receiving pit, and the proper procedures to follow before and during entering confined space such as receiving pit. [41] Mr. Cruse completed twelve CBT modules at that time. Four of the CBTs referred to the dangers of engulfment. The CBTs dealing with confined space entry, safe work permits and lock-out/tag-out referred explicitly to the dangers of entering confined space. The confined space entry CBT itself focused on the dangers of entering confined space, and on the proper safety procedures to follow when doing so. [42] At the end of each module Mr. Cruse was tested, as part of the CBT, for his comprehension of the topic. An 80% score was required to pass. Mr. Cruse took and passed CBTs in the topics have described above, in addition to other topics. [43] The following month, in June 2011, Mr. Cruse took five hands-on training courses, including hands-on training relating to safe work permits. By the time of the incident on September 8, 2011 Mr. Cruse had not yet received hands-on training in confined space entry. [44] The training materials are replete with references and warnings about the hazards of entering confined space such as receiving pit. That very volume of material, though, is part of the reason that the Crown argues that the necessary information about the hazards would have been lost on Mr. Cruse because it would have been buried in the mass of material. The Crown characterizes the information about confined space entry as having been “buried in dozens of CBT’s in hundreds of power point slides”. It is true that there were many photos, drawings and words in the material. That does not necessarily mean that the information in the material was not understandable, however. It does not necessarily mean that the worker would not be able to learn and retain what he had learned. [45] I find, in fact, that the mass of material emphasized the dangers, and the importance of following the safety procedures, rather than burying them. The CBTs included several pages describing confined spaces and the dangers associated with them. The CBTs included several pages describing the procedures to be followed to enter confined space safely. refer, for example, to the confined space entry CBT. On the first page the introduction to the CBT emphasized that people lose lives in confined spaces. This statement was emphasized again on the fourth page, where there appeared drawing of chalkboard bearing large words proclaiming “Death lurks in confined spaces!” The fifth page included list of examples of confined spaces. The first entry on the list was “Pits”. [46] This information was not buried in mass of other information. [47] Too, note again that Mr. Cruse was not permitted to move on to the next stage in his training until he had taken and passed test to verify that he had learned the information. One purpose served by the testing at the end of each CBT module was to check the employee’s comprehension to ensure that the important information was not buried. The inference that draw from Mr. Cruse having passed these tests is that he likely learned about confined space entry and its dangers. [48] In his training and education from Viterra Mr. Cruse learned that: (a) receiving pit is confined space; (b) danger is inherent in entering confined space; (c) he was not to enter confined space until he had received the necessary training in the safety procedures for doing so; and (d) he was not to enter confined space without following the safety procedures for entering confined space. [49] Mr. Cruse knew, as well, that he had not yet received the necessary training in the safety procedures for entering confined space. He had completed the confined space entry CBT, but he had not yet completed the confined space entry hands-on training. At para. 27 of Saskatchewan Wheat Pool QB, Justice Krueger posed this question in determining whether the employer had met its obligation under the Code: “Was the information, training, instruction and supervision sufficient, if adhered to, to ensure the health and safety of the employees?” [51] When I ask the same question in relation to Viterra’s instruction, training, supervision and education of Mr. Cruse generally, I find that the answer is “yes”. That is not necessarily the end of the matter, however. The Crown argues that certain other factors should influence me to conclude that the answer becomes “no”, and in any event must examine the specific allegations set out in each count of the indictment. 2. Workplace culture [52] The Crown argues that, notwithstanding the training and education that Mr. Cruse received, the workplace culture was such that he would have been led to disregard that training and education. He would have learned that, in reality, things were done consistently without regard for dangers or for the safety rules. [53] In support of this argument the Crown says that Mr. Cruse would have been aware of other employees not following safety procedures, sometimes involving confined space entry. The suggestion is based on three items of evidence. The first two items of evidence were provided in the testimony of Sheldon Hannay, who at the time of the incident was, like Mr. Cruse, junior employee at the terminal. Mr. Hannay testified that he once made horizontal entry into large concrete bin, which is confined space, with harness and the assistance of another employee, to sweep it out. Such an entry did not conform to the safety requirements of confined space entry. [54] There is no indication in the evidence, however, that Mr. Cruse was aware of this event occurring. For this reason, the event cannot form basis for what conclude was Mr. Cruse’s perception of safety culture. [55] The second item of evidence relied on by the Crown is Mr. Hannay’s description of Mr. Cruse having entered an empty receiving pit, which is confined space, without any safety measures being taken. Mr. Hannay recalled that Mr. Cruse did so to clear grain that was blocking the screen. Mr. Hannay said that he stood above the pit and shone flashlight down so that Mr. Cruse could see what he was doing. He said that Mr. Cruse did not use any tool, but rather simply used his hands to clear the screen. [56] Mr. Hannay testified that this incident occurred during regular business hours, so that he believed without specifically remembering traffic into the drive-in bay area would have been stopped. He recalled that, if anyone had told him and Mr. Cruse to have performed this task, it would have been Mr. Charlie or Mr. Garrett who did so. [57] If no one told Mr. Hannay and Mr. Cruse to engage in this conduct, then this conduct by the two most junior employees cannot have constituted basis for causing Mr. Cruse to think that there was an established culture of paying lip service to safety in the terminal. If someone told Mr. Hannay and Mr. Cruse to engage in this conduct, then that person was Mr. Charlie or Mr. Garrett. [58] Each of Mr. Charlie and Mr. Garrett denied that he was aware of such an event, and each denied that he did or would have instructed Mr. Hannay and Mr. Cruse to have engaged in the activity that Mr. Hannay described. As have said, accept the evidence of Mr. Charlie and Mr. Garrett. cannot reconcile Mr. Hannay’s description of the event with the evidence of Mr. Charlie and Mr. Garrett. While recognize that, over years, some items were overlooked in relation to compliance with safety requirements at the terminal, do not accept that either Mr. Charlie or Mr. Garrett instructed an employee to make confined space entry in the absence of any safety procedures whatsoever. [59] conclude that it is more likely that Mr. Hannay’s recollection is faulty. It is more likely that Mr. Cruse’s confined space entry did not occur. [60] The third item of evidence relied on by the Crown is the imperfect compliance at the terminal with safety procedures. The evidence establishes that, over years, some employees became due for refresher courses in their safety training, but they did not undergo that retraining within the required period or, in some cases, at all. Some Viterra records were inaccurate as to the training and education status of some employees. Some confined space entries had been approved by Mr. Garrett with inadequate arrangements for example, without sufficient number of people participating, or without adequate provision for air venting and monitoring. [61] The Crown points to the numerous examples of such oversights in support of the conclusion that there had developed at the terminal culture of only paying lip service to safety. Rather, says the Crown, the focus at the terminal was simply on getting the job done. Sometimes the job got done even if that meant that doing so required skipping some safety steps or proceeding with fewer safety participants than were needed. [62] observe, however, that there is no evidence before me that Mr. Cruse was aware of any of these transgressions. There is no evidence that he was aware of other employees being past due for refresher training, or that confined space entries were being conducted without full compliance with safety procedures, or that the terminal manager had missed some items in approving proposed confined space entry, or that Viterra’s training records in some regards were inaccurate. [63] Further, as to the prospect that culture of paying lip service to safety would have percolated down to Mr. Cruse, in light of the evidence of Mr. Charlie and other employees who worked at the terminal at the time of the incident, find that despite those lapses overall there was culture of safety. This was small group of employees. They understood that the concern for safety was real, for themselves and for their fellow workers. They understood that the concern for safety was real, because the danger of injury or death was real. [64] do not find, therefore, that there was culture of paying lip service to safety that would have detracted from Mr. Cruse’s training and education in relation to safety. 3. Specific allegations in the indictment [65] As I have said, I find that Viterra’s training and education generally of Mr. Cruse was sufficient, if adhered to, to ensure the health and safety of Mr. Cruse. must address, though, the specifics of the charges against Viterra. [66] In counts and Viterra is alleged to have failed to ensure Mr. Cruse’s health and safety by failing to instruct him on how to unplug blockage in receiving pit. If Viterra had instructed Mr. Cruse to unplug blockage in receiving pit, Viterra would have had duty to instruct him on how to do so. As I have found, though, Viterra did not instruct him to unplug a blockage. Rather, Mr. Charlie told him as he had done an hour earlier only to look into the pit to see whether there was grain in it. Not having told Mr. Cruse to perform the task of unblocking the pit, Viterra was not obliged to instruct him on how to perform that task. [67] The situation is analogous to this example: If an employer tells an employee to operate forklift, that employer has an obligation to provide training and supervision to that employee in the operation of forklift. If an employer tells an employee to do certain other jobs, and does not tell the employee to operate forklift, then the employer has no obligation to train and supervise the employee in the operation of forklift. [68] As to counts 1 and 2, then, the actus reus is not established. [69] In counts and Viterra is alleged to have failed to ensure that Mr. Cruse had the necessary training and supervision to ensure his health and safety when responding to blockage inside receiving pit. The direction that Mr. Charlie gave to Mr. Cruse was in the context of Viterra “responding to blockage inside receiving pit”. Again, though, Viterra did not have an obligation to train and supervise Mr. Cruse with respect to the actual unblocking of a receiving pit, because Viterra did not tell him to do that job. [70] To the extent that counts 3 and 4 allege that Viterra failed to adequately train and supervise Mr. Cruse, with respect to responding to a blockage by looking into the receiving pit to see if it was full of grain, the Crown has not proven the actus reus. In light of the training and education that Mr. Cruse received from Viterra, and in light of the innocuous task that he had been given and that he had performed just an hour earlier task that did not require any particular supervision, since it involved only looking through grate from the safety of the floor do not find deficiency in either the training or supervision. Accordingly, the Crown has not proven the actus reus in relation to counts 3 and 4. [71] In counts and Viterra is alleged to have failed to ensure that Mr. Cruse was aware of the hazard of being engulfed by grain in receiving pit. As I have discussed, I find that Viterra did make Mr. Cruse aware of the hazard of being engulfed in grain in a receiving pit. It is unlikely that the information in that regard was simply buried in mass of other information, so that he did not really learn it. Rather, it is likely that Mr. Cruse became aware of the hazard and that he retained that knowledge. Accordingly, the Crown has not proven the actus reus in relation to counts 5 and 6. 4. Conclusion as to actus reus [72] The Crown has failed to prove, beyond reasonable doubt, the actus reus relating to any of the six counts. F. Due diligence [73] Section 148(4) provides that “... it is defence for the person to prove that the person exercised due care and diligence to avoid the contravention.” Exercising due diligence is matter of taking “all reasonable steps”, not matter of taking “all conceivable steps”: British Columbia Hydro and Power Authority, [1997] BCJ No 1744 (QL) (BCSC) at para 55. [74] If the actus reus were proven with respect to any of the six counts, I would conclude that Viterra had exercised due diligence. In so concluding, would consider the factors that have reviewed above. These include Mr. Cruse’s training and education, including Mr. Cruse having learned the dangers of entering confined space, and the need to follow safety procedures in doing so, and the fact that receiving pit is confined space. These factors include also the fact that Mr. Cruse was not told to do anything related to entering receiving pit, and the fact that Mr. Cruse was told to perform task that did not involve entering receiving pit. The factors include as well the fact that there was no reason for Mr. Charlie to think that Mr. Cruse would consider entering the receiving pit. [75] Accordingly, the defence of due diligence would apply with respect to each count if the actus reus had been established with respect to it. G. Conclusion [76] The Crown has not proven the actus reus with respect to counts 1, 2, 3, 4, 5 or 6, and in any event the defence of due diligence would apply to each of those counts. [77] Accordingly, I find Viterra not guilty on all six counts. J. G.M. CURRIE
HELD: The court did not accept the Crown’s position that proof of a worker injury or death necessarily proved the actus reus of failing to ensure the health and safety of an employee. The deceased witness’s evidence was not relied upon by the court due to inconsistencies. The assistant manager’s evidence also had some inconsistencies but overall his oral testifying was found to be in a frank and honest manner. The court accepted the assistant manager’s evidence that he would not have told the employee or anyone to go down into the pit to clear a blockage, because it is not possible to clear such a blockage from inside the pit. The Crown argued that, in any event, the court should infer that because the employee entered the pit, the respondent did not adequately instruct, train, supervise and inform him. The court found that the mass of training material emphasized the dangers and the importance of following the safety procedures. The information was not buried in a mass of other information as suggested by the Crown. The court found that the information, training, instruction and supervision was sufficient, if adhered to, to ensure the health and safety of the employee, generally. The Crown argued that a culture of paying lip service to safety had developed at the respondent’s place of business. The court held that, despite some lapses in safety, overall there was a culture of safety. The court also held that the respondent did not instruct the employee to unplug a blockage in the pit and, therefore, did not have an obligation to instruct him on how to perform that task. The respondent was not guilty of counts 1 and 2. The Crown also did not prove the actus reus of counts 3 and 4. The Crown failed to prove that the respondent did not adequately train and supervise the employee with respect to responding to a blockage by looking into the receiving pit to see if it was full of grain. The court also concluded that the respondent had made the employee aware of the hazard of being engulfed in grain in a receiving pit and, therefore, the actus reus of counts 5 and 6 were not proved. The court noted that if the actus reus had been proven with respect to any count, the court would have, nonetheless, concluded that the respondent exercised due diligence.