The directed verdict dismissal of six Occupational Health and Safety Act (OHSA) charges raises several questions about how cases are prosecuted, says Toronto lawyer Norm Keith.
Delgant Civil Ltd. was charged under the OSHA after a Feb. 2017 incident in which a concrete form worker fell through temporary plywood flooring to the level below. He broke his leg and was seriously bruised but recovered.
In a decision released in October the court dismissed the charges saying the Crown had failed to prove its case.
However, Keith of Fasken Martineau, a specialist in labour law and safety regulations who successfully acted for Delgant and 1276713 Ontario says there is more to it than meets the eye in the case because the decision illustrates some failures in the prosecution, starting with investigation.
The Ministry of Labour, Training and Skills Development (MLTSD), in an emailed statement to questions, responded: “All case decisions are reviewed by the prosecuting Crown and peer reviewed by Legal Services when the Crown determines that no appeal is warranted. This was done in this case.”
There were three failures, says Keith, one that the evidence was poorly collected, two that the there was a conflict of interest between the inspector and the construction company and third, that crucial evidence — the plywood sheet the worker fell through — simply vanished.
The latter violates every best practice of any investigation at any level from criminal to regulatory, he says, noting there must always be seizure of evidence which is then tagged, photographed, catalogued and taken away to be stored until such time as the court process is completed up to and beyond any appeal.
The ¾ inch plywood floor sheet which was supposed to be nailed down was seized improperly for evidence but then disappeared.
He wasn’t killed or more seriously injured but it could have been much, much worse,
— Norm Keith
“There was no way to test it, to examine it for flaws,” he says.
The Ministry however says there was no broken chain of evidence.
“Rather, the evidence was not seized, which is typical and reasonable for this type of case.” it wrote. “Observations, measurements and photos were taken by both the Inspector and engineer at the time of the inspection in accordance with common ministry practice.”
The upshot, however, says Keith, is that the MLTSD should review how it handles investigations and processes evidence because this kind of failure has happened before.
“In this case he wasn’t killed or more seriously injured but it could have been much, much worse,” he says.
The Ministry however says it has no plans beyond it’s usual reviews.
The court noted that in cross examination it emerged that before he had been assigned to the case the inspector took a call on his private cell phone from the construction company contact who had his number because the inspector was trying to get him a job with the ministry.
“That’s a clear conflict of interest,” says Keith.
The case was heard by Justice of the Peace Latly Vu last spring in Toronto over four days and a decision was rendered in October to uphold the application for a directed verdict brought by Keith, he did not call any witnesses or table evidence.
Concrete contractor Delgant and its numbered company affiliate, both of Bolton, Ont. were charged with six counts and acquitted on all.
At issue was that they failed to ensure measures under the OHSA regulations were carried out at the 955 Bay St. project — the renovation of the old Sutton Place Hotel — that a proper guard rail or a secured flooring covering was not properly installed and that it was not fastened securely. Also, it was alleged, that the sheet was not secured from slipping.
On a technical point of law, which arose because the charges were specific and “particular,” the Crown was cast into the position of having to prove the evidence. Thus it had to provide the specific evidence against them so as to allow them to “mount a full defense and have a fair trial.”
In summarizing the events, JP Vu noted concrete former Samuel Pilieci, who is over six feet tall about 240 pounds, was working on the project as a swamper, a labourer, rigging and detaching hoisting equipment on the fifth floor when somehow he went through a ¾ -inch plywood sheet which had been installed as temporary flooring.
He testified that he stepped back from the elevator shaft after knocking free some wood forming and heard a cracking sound before he fell. He also testified that he saw the carpenters on the job previously nailing down the sheets and that he was confident they were doing a good job. Despite his size and weight he said he had no concerns walking on the flooring.
It was the next day when the Matthew Neundorf, Ministry of Labour Health and Safety Inspector received a call on his private mobile from the construction site manager informing him of an incident the previous day.
Neundorf had given the site manager his private number because the manager was interested about a job with the ministry as a safety inspector.
Nuendorf rightly told the manager to contact the call centre and they would assign an inspector to investigate. As it turned out, he ended up with the call.
Even though Neundorf and the labour ministry engineer assigned gathered evidence and took photographs of the scene, Keith countered that the notes were sparse, there was no notation of time, date or location as per standing best practice of any investigator.
The inspector did note that the joists were 24-inches on centre and that Pilieci fell about nine feet. There were no eye witnesses.
While the plywood was examined and found intact, with no nails protruding there was no notation as to whether there were any holes in it which would have indicated it was nailed down previously. It was not sent for testing and it subsequently vanished.
“The JP did not make a finding that the photos were not properly documented,” the Ministry countered. “This was an argument made by defence that was countered by arguments made by the Crown that the photos were all properly documented and disclosed. Ultimately the Justice referred to the photos in her decision and concluded that they were unable to assist her in assessing why/how the platform/plywood came down.”
Keith argued that the Crown simply had not proven its case, that the evidence was weak and inconclusive and that all the testimony failed to show a breach of any regulation as charged and that the allegation the plywood sheet was not secured was not supported with any evidence.
The Crown countered that it was black and white, that the regulations were contravened because there was an incident, that the plywood could not have been secured and that it doesn’t have to show more than that to secure a conviction.
J.P. Lu disagreed: “Therefore, having reviewed the direct evidence before me, having reviewed the circumstantial evidence from which I cannot rationally infer guilt, I am satisfied that the motion for directed verdict is made out. Therefore, the six charges as particularized against Delgant Civil Ltd. and 1276713 Ontario Ltd. are dismissed.”
In response the MLTSD said the case failed for several reasons and nothing is out of the ordinary.
“It is not uncommon for workers to shift their evidence when testifying at trial (as compared to their statements to inspectors) to better align with their employers or for witnesses to state that they cannot recall details at trial — both were issues in this case,” it wrote. “It is infrequent, but not uncommon for a prosecution to be dismissed after motion for directed verdict.”