IN THE PROVINCIAL COURT OF SASKATCHEWAN SITTING AT MEADOW LAKE BETWEEN: HER MAJESTY THE QUEEN -and- KENNETH PEDERSON SR. W. Campbell for the Crown G. Morin for the Accused JUDGEMENT WHITE, P.C.J. SEPTEMBER 27, 1999 Kenneth Pederson Sr. is charged with seven violations of The Occupational Health andSafety Act, 1993 being Chapter 0-1.1 of the Statutes of Saskatchewan and the Regulationsmade pursuant to the Act. The charges read as follows: 1. That on or about the 17th day of October 1996 at St. George’s Hill, Saskatchewan he did fail to ensure, in so far as is reasonably practicable, the health, safety and welfare at work, of his worker, Kenneth Shatilla, contrary to S. 57 of the Act (as above). 2. That on the same date and place did contravene S. of the Act and Regulations by failing to ensure that all work at the place of employment was sufficiently and competently supervised, and did fail to ensure that every Supervisor conducted himself and the work under his supervision in safe and responsible manner and in compliance with the Act and Regulations contrary to S. 57(b) of the Act. 3. That he failed to ensure that no worker was permitted to perform work unless the worker was sufficiently experienced or instructed to perform the work safely and in accordance with the Regulations or under close and competent supervision, contrary to S. 57(b) of the Act. 4. That he did contravene S. 56(1) of the Regulations in that he failed to provide and maintain for work site readily accessible first aid station containing required supplies and equipment, contrary to S. 57(b) of the Act. 5. That he did fail to ensure that his worker, present in trench more than 1.2 metres in depth, was protected from any cave-in or sliding material, contrary to S. 57(b) of the Act. 6. That he did contravene S. 260(6) of the Regulations in that he did fail to ensure that competent worker was stationed on the surface when worker was in trench contrary to S. 57(b) of the Act. 7. That he did contravene S. 260(7) of the Regulations by failing to ensure that when worker was required to enter trench, safe means of access to and egress from the trench is provided at suitable locations, contrary to S. 57(b) of the Act. [1] Winter comes early in Northern Saskatchewan and it lingers for long time. [2] The fall and the spring are times of intense activity. [3] Unfortunately, haste and inexperience often hatches death especially in the North and especially in the construction industry. [4] Late in the month of October 1996 Kenneth Pederson Sr., the defendant in this case,obtained a contract from the Hamlet of St. George’s Hill to install sewer and water lines on four lots. [5] This he arranged to do by using the services of an individual he knew by the name of Russell Woods who was hired to do the backhoe work on the excavation. The arrangement was that Pederson Sr. supplied the backhoe, the piping and the gasoline and Woods and pipe- layer were to do the work; the understanding was that the men would be paid wages on an hourly basis according to the defendant and according to Mr. Woods. [6] The defendant had intended that Woods would be assisted in the laying of the pipe by an experienced worker by the name of Wayne Clarke; Clarke was not available to do the job and therefore Woods used his nephew, Kenneth Shatilla.. Woods had about 15 years experience but most of the trenching experience that he had was ‘in the hole’ as pipe-layer rather than as backhoe operator. Shatilla had no experience in sewer and water trenching to speak of. [7] The excavation was completed on October 17, 1996 in the afternoon; the trench was extremely dangerous because it had straight-cut walls with no appreciable sloping. In addition, there was no ladder or first aid supplies. Furthermore, the walls of the trench were not secured with proper bracing or shoring and finally the soil pile was too close to the edge of the trench. The trench varied in depth from two to three metres over its length which was about twelve to fifteen metres and its was about 1.1 to 1.2 metres wide. [8] The soil in this area of St. George’s Hill is clay and holds well in the normal course of things. However, at the location of the junction of the old line into which the new lines were to be connected the soil had been disturbed by reason of previous excavation making it less stable than the newly dug trench further away from the junction. [9] It was at this location that Kenneth Shatilla was buried by cave in and died at about 5:30 p.m. on October 17, 1996. Just prior to the cave-in Russell Woods left his inexperienced nephew alone in the trench and went to look for piece of pipe located near trailer on the surface He was gone for about minute. [10] Part of the wall collapsed along its length and fell upon Shatilla. It took about two hours to dig him out. He died because he had suffocated by reason of lack of oxygen. [11] The essential facts of this case are not in dispute and they are fairly straight-forward. The defense objected to the admission into evidence of remedial progress report that was simply marked for identification pending the ruling of the court. Because the uncontestedfacts of this case are quite sufficient for the purpose of reaching a final judgement on themerits of the case I have decided to rule the report inadmissible without addressing thetechnical aspects of the ruling and without making a formal comment on the legalarguments put forth pro and con regarding the issue of admissibility. think that it is unnecessary to do so in this case and leave it to another court on another day when the issue may be central to the outcome of case to carefully consider the matter and to rule in an authoritative and precedentially significant manner at that time. [12] The principle issues in the case are, as follows:· (a) did the defendant have an obligation imposed by law with respect tothe workers at the St. George’s Hill excavation site?· b) if the defendant did have a legal obligation did he discharge itby exercising due diligence in the circumstances? (Both the Crown and Defense agreed that offences under consideration are strict liability and therefore bring into play the possible defense of due diligence.) [13] The Act defines “employer” to mean: “a person, firm, association or body that has, in connection with the operation of place of employment, one or more workers in the service of the person, firm, association or body.”(s. 2(i)) The Act defines “self-employed person” as: “a person who is engaged in an occupation but is not in the service of an employer.” (s. (cc)) “Worker” is defined as: “a person who is engaged in an occupation in the service of an (s. 2(ff)) The Act does not define “due diligence” but well-established case authority simply defines this as taking reasonable care to avoid causing harm which is prohibited by law. Another way of putting this is to ask if the defendant was negligent or not? Or stated otherwise would reasonable person in the position of the defendant have done anything differently to guard against and protects against the harm contemplated by the occupational health and safety legislation. [14] The evidence is clear that the relationship between the defendant Mr. Pederson Sr. and Mr. Woods and Mr. Shatilla was one of an employer to workers. In older parlance one would say that this relationship was one of master and servant or employer and employee. Clearly, Woods and Shatilla were in the occupation of trenching and pipe-laying in the service of the defendant Pederson [15] Woods and Shatilla had no expectation of receiving anything but wages for hours worked at St.George’s Hill; they certainly had no prospect of making profit on the job wages not profits were in the contemplation of all involved. They used backhoe leased by Peterson,fuel provided by Pederson and pipe purchased by the defendant Peterson. Who stood to make or lose money on the job? Only Mr. Pederson. He had absolute control of the work; after the “accident” it was of course Mr. Pederson who completed the job. It is noteworthy that when he did so he discovered just how badly the initial work and the hookups were done and he had to correct the major errors that had been made not only with the trenching but also the piping. [16] The relationship between the defendant and Woods and Shatilla had all the ordinaryindicia of an employer/employee or employer/ worker relationship. Mr. Peterson controlled theproject and the tools and the materials ; he bore the risk of profit or loss. In these circumstances it is my opinion that Woods was not “self-employed person” because this was not situation akin to contractor and sub-contractor where the contract is for lump sum and the sub-contractor absorbs his own risk of profit or loss on the job. [17] Woods and Shatilla were working for wages in the service of Pederson; he was theiremployer; he directed them to do the work and he had ultimate responsibilityfor the worksite and the completion of the project. In my opinion the fact that Woods arranged for his nephew to work with him does not make Woods an employer since the three men all understood that this would be work for wages in the service of Mr. [18] This is quite important because the legal obligations imposed by The Occupational Health and Safety Act 1993, S.S. 1996, c. 0-1.1 and the Regulations made thereunder that form the subject-matter of this case would not apply to the defendant if he were merely “contractor” rather than an “employer”; in that case they would only apply to Woods presuming that court had determined that he was “self-employed person” acting as sub-contractor which have specifically adjudged that he was not in the circumstances of this case. [19] There is no doubt in this case that the defendant had complete control of the two workers but that he chose not to supervise the work site because he was extremely busy with other business matter which had taken him to Laloche and then to Saskatoon when the trenching was being done at St. George’s Hill. [20] It seems to me that once one finds that there was legal duty on the defendant as an employer under the Act then his obligations under the law are to take active steps to supervise and oversee the excavations to make sure that the usual protocols for job safety are met. At minimum this would have required the presence of an experienced person on site (either Mr. Peterson Sr. or someone on his behalf with his authority to give orders and directions at the worksite). Of course, any reasonable person with some knowledge of worksite safety in relation to trenching would insist that the walls be properly sloped, that there be ladder or other method to get into out of the trench safely, that there be first aid supplies readily available. In addition, supervision of the worker in the trench is essential to the safety of the worker and it is especially so when the worker in the trench is inexperienced. As a matter of fact no inexperienced person ought to be allowedto work on such a potentially dangerous site without proper training and specificguidance and supervision. [21] The Law is specific on the requirements to be met for the safety of workers when excavation and sewer and water hookups are undertaken. These are as follows: S.3 of the Act stipulates: “Every employer shall (a) ensure, insofar as is reasonably practicable, the health, safety and welfare at work of all of the employer’s workers; (e) comply with this Act and the regulations. S. 57(a) and (b)make it an offence to contravene duty imposed under s.3 or the regulations. S. of the Regulations stipulates: “Every employer shall, so far as is reasonably practicable ensure, that: (a) all work at the place of employment is sufficiently and competently supervised; (b) every supervisor has sufficient knowledge of the Act and the regulations in force under the authority of the Act and the information and means to ensure that work under his supervision is carried out in manner which is safe and without risk to health; and (c) every supervisor conducts himself and the work under his supervision in safe and responsible manner and in compliance with the Act and every regulation in force under the authority of the Act.” S. of the Regulations stipulates: “Every employer shall ensure that no worker is permitted to perform work unless that worker is sufficiently experienced or instructed to perform the work safely and in accordance with the regulations in force under the authority of the Act or where that work is done under close and competent supervision.” S. 56(1) of the Regulations stipulates: “The employer shall provide and maintain for every work site readily accessible first aid station ....” S. 260(1) of the Regulations stipulates: “Where worker is present in trench more than 1.2 metres in depth, the employer shall ensure that he is protected from any cave-in or sliding material by: (a) cutting back the upper portion of the walls to an angle of not less than 30degrees to the vertical in hard compact ground so that any remaining vertical wall does not exceed 1.2 metres in height; (b) the installation of temporary protective structure; or (c) combination of cutting back the walls and the installation of temporary protective structure.” S. 260(6) of the Regulations stipulates: “When any worker is in trench, the employer shall ensure that competent worker is stationed on the surface to alert any worker in the trench about the development of any potentially unsafe conditions and to provide assistance in an emergency.” S. 260(7) of the Regulations stipulates: “Where any worker is required to enter trench, the employer shall ensure that safe means of access to and egress from the trench is provided at suitable locations. [22] The defendant did not recognize or give recognition to his responsibilities imposed by law on this worksite. He was negligent. If he had taken reasonable care the “accident” would not have happened since he would not have allowed such inexperienced people as Woods and Shatilla to do the work. [23] In any event, once Peterson made the decision to hire these two men, he had duty to make sure that they followed the most basic of safety rules. He did not do this. Had he done this there at least would have been proper safety measures taken at the worksite so that even with these inexperienced workers doing the job their safety could easily have been ensured by taking the simple and common sense steps mandated by the law embodied in the Act and Regulations that govern workplace health and safety for example, properly sloping the trench). [24] Mr. Peterson violated the law by his failure to take any reasonable precautions to prevent death or injury to the workers whom he was responsible for on the worksite in St. George’s Hill. [23] Mr. Pederson is therefore guilty as charged on all offences. Dated at the Town of Meadow Lake, Saskatchewan the 27th of September, 1999. T.W. White, P.C.J.
The defendant, who was to install sewer and water lines on four lots for the hamlet, was charged with seven violations of the Occupational Health and Safety Act and Regulations. It had been agreed that the offences were strict liability. The principle issue was whether the defendant had an obligation imposed by law with respect to the workers and if so whether he discharged it by exercising due diligence in the circumstances. The essential facts were not in dispute. HELD: The defendant was found guilty on all offences.  1)There is a legal duty on an employer under the Act to take steps to supervise and oversee excavations to ensure the usual protocols for safety are met. This requires at a minimum the presence of an experienced person on site. Any reasonable person with some knowledge of worksite safety would insist that the walls be properly sloped, that there be at a ladder or other method to get out of the trench and that first aid supplies were readily available. Supervision is essential particularly when the worker is inexperienced. The deceased had had no experience in sewer and water trenching. No inexperienced person should be allowed to work on such a potentially dangerous site without proper training and specific guidance and supervision. The Law is specific on the requirements to be met for safety of the workers on excavation and sewer and water hookups. 2)The remedial progress report was ruled inadmissible. There was no formal comment on the issue of admissibility. 3)The Act does not define due diligence but well established case authority defines it as taking reasonable care to avoid causing harm which is prohibited by law. 4)The Act does not apply to a contractor. The relationship had all the ordinary indicia of an employer/employee relationship. The defendant controlled the project, tools and materials and bore the risk of loss or profit, had the ultimate responsibility for the worksite, completion of the project and the payment of wages.