PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. McPhee, 2013 NSPC 77
Date: 20130222
Docket: 2418449
Registry: Port Hawkesbury
Between:
Her Majesty the Queen
v.
Darren Joseph McPhee
Judge: The Honourable Judge Laurel Halfpenny MacQuarrie
Heard: November 19, 20 & 21, 2012 in Port Hood, Nova Scotia
Charge: Between May 10, 2010 and August 13, 2010 at, or near 15050 Cabot Trail Highway, Chéticamp, Inverness County, Nova Scotia, did, as a constructor, fail to take every precaution that is reasonable in the circumstances to ensure the health and safety of persons at or near a project, contrary to subsection 15(a) of the Occupational Health and Safety Act, thereby committing an offence contrary to subsection 74(1)(a) of the Occupational Health and Safety Act, R.S.N.S. 1996 c. 7 as amended.
Counsel: Peter Craig, for the Crown
Kevin Patriquin, for the Defence
By the Court:
[1] Darren Joseph McPhee is charged on an Information that:
Between May 10, 2010 and August 13, 2010 at, or near 15050 Cabot Trail, Chéticamp, Inverness County, Nova Scotia did, as a constructor, fail to take every precaution that is reasonable in the circumstances to ensure the health and safety of persons at or near a project, contrary to subsection 15(a) of the Occupational Health and Safety Act, thereby committing an offence contrary to subsection 74(1)(a) of the Occupational Health and Safety Act, R.S.N.S. 1996 c.7 as amended.
[2] The charge against Mr. McPhee arose as a result of the death of Dylan LeBlanc (d.o.b. June 25, 1998) on August 13, 2010 when a boom truck driven by Joseph Gordon Deveau collided with this young boy. This occurred on a construction site.
[3] Mr. McPhee, it is alleged by the Crown, was the project supervisor at this site and is, within the meaning of the Occupational Health and Safety Act (hereinafter referred to as the “OHSA”) a “constructor”.
[4] The project was a renovation of the Fiset Maison Inn at Chéticamp, Inverness County, Nova Scotia.
[5] Subsection 15(a) of the “OHSA” provides:
Every constructor shall take every precaution that is reasonable in the circumstances to ensure
(a) the health and safety of persons at or near a project
[6] A Preliminary Determination on Cause and Manner of Death from the Medical Examiner Service, Halifax, on this young boy indicated the cause of death to be “Blunt Force Injuries”. Identification was agreed upon as well.
[7] The burden of proof is on the Crown to prove all elements of the offence beyond a reasonable doubt and Mr. McPhee is presumed innocent throughout.
[8] The Court heard from 16 witnesses and received nine exhibits. I have reviewed the evidence in its entirety but am only going to refer to those portions of it necessary for the giving of my reasons, however I have considered it all.
[9] Thomas Webber of Fort St. John, British Columbia was leaving the Chéticamp area proceeding south on the Cabot Trail Highway on Friday, August 13, 2010, on his motorcycle, when he had to stop at a construction site. Two vehicles were in front of him. He observed a boom truck attempting to back into a driveway and then change its position and drive in. He also observed a dump truck parked on the curb near this construction site and driveway. He described the dump truck as being half on the curb and half on the road and facing the wrong way, meaning it was on the wrong side of the road. It was parallel to an orange fence.
[10] He noticed a young child between this dump truck and orange fence on the sidewalk on his bicycle. He saw the boy on the bike proceed into the path of the boom truck as it moved forward into the driveway.
[11] Mr. Webber, and subsequent witnesses, indicated on a large photo, being approximately 21/2' x 3' in size, the positions of the dump truck, boom truck, young boy, a gentleman standing in the street, etc.
[12] The tendered photo also shows a portion of the highway facing south, the curb/sidewalk, orange fence surrounding the construction site, the front of the building under construction, and a neighbouring property to the south.
[13] When Mr. Webber first saw the young boy behind the dump truck, he was unable to see if there was any traffic in the north bound lane because such was obstructed by the boom truck.
[14] He saw a gentleman to his left who appeared to him to be directing the boom truck into the driveway. The young boy drove down the sidewalk and got to the driveway just as the boom truck was proceeding up the driveway. The boom truck pushed him over with its bumper and the young child came out from under the wheels of the truck.
[15] Mr. Webber ran to the scene immediately. The young boy was conscious but in critical condition in his opinion, 911 was called and an ambulance came to the scene. The young boy was wearing a helmet and it was crushed.
[16] The young boy and the boom truck were moving at the same time and he knew the collision was going to happen. There was just enough space in his opinion between the dump truck and the edge of the snow fence on the sidewalk for the boy to pass through on a bicycle. It was his impression that neither the young boy nor the boom truck operator saw each other because of the obstruction by the dump truck.
[17] The area in question is a straight stretch of road with good visibility in either direction for half a kilometre or more if the trucks were not present.
[18] Alphonse LeBlanc operates heavy equipment for Chiasson Brothers and was on this construction site for a very brief amount of time clearing branches and debris from behind the property. He had driven up the driveway to collect the same and when exiting the boom truck had to move out onto the road. The boom truck backed onto the road in the direction of Andre Aucoin. Mr. Aucoin was operating the other dump truck that day. It was parked partially on the sidewalk and partially on the road. Mr. LeBlanc did not see the collision.
[19] Mr. LeBlanc worked on the site four other days over a three to four month period, running an excavator. He understood Darren McPhee to be the foreman. He had had discussions with him regarding the snow fence but never any discussions regarding traffic control or any hazard assessment.
[20] John Hugh “Jack” Ingraham was working for 5823 N.W.T. Limited on August 13th putting a new roof on the Maison Fiset building. He had been hired by Darren McPhee and took his directions from him.
[21] After lunch he and his crew returned to the roof about 12:45 p.m.. This was a busy day with work going on behind the building, there was an excavator in front of the building on the lawn, there was a boom truck on the side in the driveway and there was a dump truck on the roadway in front on the sidewalk. It was parked on the wrong side of the road.
[22] Mr. Ingraham was loading chains and watching below. He saw traffic having to stop so that the boom truck could exit to allow the dump truck from the back to leave with its load. Andre Aucoin was on the road when this was being done. He saw the young boy on his bike stopped at the end of the orange fence. The boy looked to be talking to people in a vehicle.
[23] Mr. Ingraham moved to do something on the roof, he heard the racing sound of a motorcycle and then when he looked again saw the bicycle under the boom truck. People were hollering to call 911 and the boy was on the ground with his helmet on. He climbed down the side of the building and there was mass confusion. He and another worker were asked by the R.C.M.P. to direct traffic.
[24] Mr. Ingraham testified there was no designated traffic control on this site. He previously had discussions with Mr. McPhee regarding the need for someone to stop traffic the day that the trusses for the roof were to be delivered but there was no formal procedure, no written protocol or anyone designated for such.
[25] Joseph Gordon Deveau, is a boom truck operator, employed by Chéticamp Boatbuilders and has been for some 31 years.
[26] On this date he was operating a boom truck at the Maison Fiset where a roof was being removed. He had been there for about an hour and a half in the morning, went to lunch and returned about 12:45 p.m.. He pulled into the dirt driveway and was parked waiting for a dump truck to finish removing debris from the back of the building. When it was ready to exit he backed out onto the highway and was assisted by Andre Aucoin.
[27] Mr. Deveau placed Mr. Aucoin on the photo as being to his left and north of the driveway of the construction site. Mr. Aucoin was standing in the middle of the highway near the yellow line.
[28] Mr. Deveau placed Mr. Aucoin’s dump truck on the sidewalk in the same area as others and indicated he was unable to see the sidewalk from his boom truck because the dump truck was in the way. The traffic was stopped in both directions as he backed out. Mr. Aucoin signalled to him to drive back into the driveway by waving at him from the centre of the road.
[29] Mr. Deveau proceeded at approximately 3 to 4 kilometres per hour. The distance between the southern most point of the driveway and the back of Mr. Aucoin’s dump truck he estimated to be approximately 10 feet. He could not see behind his truck and was relying on Mr. Aucoin. There was nothing unusual until he looked in his mirror and saw someone fall on a bike behind his truck. He learned it was the young boy.
[30] When he entered the driveway he could not see anything on the sidewalk to his south, including this young boy. His boom truck with the cab is 25 feet long, 8 ½ feet wide and he is approximately 5 feet up in the driver’s position and is not able to see anything below.
[31] He had been to this work site on a day previous the week before. He had not on that occasion, or this occasion, had any discussions regarding hazard assessment or pedestrian traffic with Mr. McPhee. In his opinion the work site appeared safe, he had no concerns with respect to health and occupational safety and the only time he ever had any difficulty with respect to this driveway was on this occasion.
[32] Mr. Deveau had not asked Mr. Aucoin for assistance but assumed because his dump truck was in the way he undertook to provide him direction as the area from the dump truck to the snow fence was a blind spot for him.
[33] Cst. Marc Maillet a member of the R.C.M. Police Chéticamp detachment was on duty and responded to the incident call at approximately 1:00 p.m.. He was met on scene by Cpl. MacKay and E.H.S.. Cst. Maillet tendered and described eight photos taken of the scene which showed an accurate depiction. The only exception being that of Andre Aucoin’s dump truck not being on the sidewalk. It had been moved without the knowledge of the officer who was taking statements.
[34] He confirmed a summary offence ticket under the Motor Vehicle Act was laid against Andre Aucoin pursuant to subsection 164(1), which is an offence of “driving on a sidewalk other than at a driveway”.
[35] Roger Bourgeois was a carpenter involved in the roof project with Mr. Ingraham. He described it as a very busy work site on this date with two dump trucks, the excavator and boom truck all being onsite along with many workers. This was not the usual everyday activity, it was busier than most. He was on the roof and noticed the dump truck driven by Mr. LeBlanc getting ready to leave and the boom truck on its way in so it had to back out onto the highway and wait for LeBlanc to exit. He then turned back to his work and within seconds heard the revving of a motor bike, someone holler to call 911 and someone saying there had been an accident, someone had been run over.
[36] Mr. Bourgeois saw Andre Aucoin’s dump truck parked on the sidewalk, facing the wrong direction. It had a portion of its wheels on the sidewalk.
[37] Mr. Bourgeois was employed by N.W.T. Limited, receiving direct deposit cheques from it but was hired by Darren McPhee. He understood Mr. McPhee to be the project manager. He was hired in April/May, 2010 and Mr. McPhee was at the work site most everyday. There were two trailers, one was a tool crib and the other served as an office for Mr. McPhee. Mr. McPhee would assign the duties and tasks each day and Harvey Bourgeois who owned 5823 N.W.T. Limited would come to the site when he was home in Chéticamp.
[38] Mr. Bourgeois was familiar with the orange snow fence and felt that its purpose was to protect pedestrians from debris and as a barrier to keeping them off the property.
[39] He would check this fence in the morning to ensure it was in good repair and fix anything that was necessary. If there were any occupational health and safety issues such would be directed to Darren McPhee and in his opinion there had been no unaddressed concerns, that this site had always been safe and that fall protection was in place. It was not usual for trucks such as Mr. Aucoin’s to park on the sidewalk.
[40] Blaze Basker was the other carpenter involved in the roof construction and he too considered Darren McPhee as his boss on the site. He started work about a month before this incident and received his daily work assignments from Mr. McPhee, who had an office behind the project. He never had any discussions with Mr. McPhee regarding traffic concerns or issues in the front of the building and there was no hazard assessment regarding traffic or pedestrians with respect to the highway in place to his knowledge. His understanding was Darren McPhee was the only supervisor on the site.
[41] Mr. Basker saw the boom truck exit the driveway so as to allow the dump truck to take the debris off the property. Andre Aucoin assisted with such and was at the tailgate portion of his dump truck, which was parked on the sidewalk, giving directions to the boom truck operator. He did not see the collision, although he had noticed the boy on the sidewalk earlier.
[42] There was a lot of traffic backed up in both directions while the boom truck was making way for the truck with the debris to leave. His general observation was that there was not a lot of organization on this work site and there did not appear to be a lot of room for all of the machinery and the trucks that were there this particular day.
[43] It was his opinion that the young boy would not have been able to see the boom truck as his view would have been blocked by the position of Andre Aucoin’s dump truck. Similarly the boom truck operator would not have been able to see the young boy.
[44] John Gerard Beaton, along with his wife, were stopped, being the first in a line of traffic heading north near the construction site. They were three to four car lengths back from the dump truck, south of the orange fence. He had received an indication to stop by a guy on the road. This “big” guy was standing and walking in front of Mr. Beaton’s vehicle but in the south bound lane.
[45] He saw a boom truck back across the road and as it started to move forward the big guy followed behind it and they moved forward. It was at that point that Mr. Beaton was aware of a young boy on a bike on the sidewalk. As he passed the driveway he looked over and saw the young boy on the ground.
[46] Mr. Beaton had been a first responder and a medic for 25 years at the local pulp mill and went to the young boy, knowing immediately that the situation was grim. He gave directions to others and waited for E.H.S. personnel to arrive.
[47] Mr. Beaton specifically took note of the positions of the boom truck and dump truck and of the fact that there was nothing on the sidewalk to prevent this child or other pedestrians from using the sidewalk.
[48] He also, because of the distances and height of the vehicle, and his experience as a heavy equipment operator for years, gave the opinion that the driver of the boom truck would not have any opportunity to have seen the young boy on the bike, as the big red dump truck was parked on the wrong side of the road. Nor would the young boy have been able to have seen the boom truck. Mr. Beaton gave a statement to the R.C.M.P. and during such saw the “big guy” who had stopped him and then waved him on, move the dump truck.
[49] Amile Robitaille was on a day off on August 13th and was running late to meet friends at the beach when she was driving south on the highway near the Maison Fiset construction site. The car in front of her was stopped and she had to stop at which time she saw a truck, heard screaming and then saw young Dylan LeBlanc. She jumped out, called 911 and was dealing with him until E.H.S arrived. She did not see the collision.
[50] She travelled by this work site everyday and had never before been stopped nor does she recall any congestion in the area previously.
[51] Harvey Bourgeois lives in Yellowknife, North West Territories and is the owner of a food and beverage business as well as 5823 N.W.T. Limited.
[52] On August 13th, 2010 5823 N.W.T. Limited was involved in the restoration of an Inn in Chéticamp, better known as the Maison Fiset House on the Cabot Trail. The construction started on May 17th, 2010 and continued until the end of June, 2011.
[53] He was not able to be on the site everyday because of where he resides and as a result hired Darren McPhee to be his project manager. It was a verbal contractual relationship.
[54] He identified the insignia on a sign located on the construction site, shown in exhibit C-4, photo 657, and which can be seen on the large photo, C-2. The sign is a picture of the intended look of the Inn upon completion. The insignia “McPhee Contracting” is on the lower right hand corner. He indicated Mr. McPhee designed the sign and the layout of the building.
[55] Mr. Bourgeois was not in Chéticamp on the date of this incident and received a telephone call from Mr. McPhee. He gave instructions to Mr. McPhee to shut down the project until further information was received.
[56] The verbal contract between the gentlemen included Mr. McPhee’s job description, including his being responsible for daily supervision on the site, he was to hire, and to dismiss, if necessary, employees and he was to provide daily work assignments/tasks. Mr. McPhee also had authority regarding suppliers and contractors on the site and was to converse with Mr. Bourgeois when specific topics needed to be discussed.
[57] 5823 N.W.T. Limited does not have a written policy regarding traffic control or pedestrian traffic at work sites. Mr. Bourgeois had never, prior to this incident, given any direction to Mr. McPhee regarding the company or employee’s obligation regarding traffic control or pedestrian management. It was known that the job site should be safe and employees were to wear hard hats. No risk or hazard assessment was ever conducted to his knowledge.
[58] Mr. Bourgeois testified he relied on Darren McPhee to ensure adequate health and safety measures would be in place but never questioned Mr. McPhee as to his awareness of requirements under the Nova Scotia Occupational Health and Safety legislation.
[59] Daniel Roger Chiasson was operating an excavator on the Maison Fiset site on August 13th. His excavator was positioned in front of the building and was loading debris from the roof into dump trucks. There were two dump trucks on site, one operated by Andre Aucoin and one by Alphonse LeBlanc.
[60] Mr. Chiasson had been to the work site six to ten times previously and received directions there from Darren McPhee. On this particular date, when the boom truck operator had gone to lunch, he took the excavator to the back and loaded debris onto both of the trucks. He was still in the back of the property when the boom truck returned and the driver had to back out onto the road to let Mr. LeBlanc’s dump truck exit. Once Mr. LeBlanc left he repositioned the excavator in the front building on the top portion of the lawn. When he turned around the accident had already happened.
[61] He described the dirt driveway as being 12-15 feet wide with not enough room for two construction vehicles to pass one another. He saw Andre Aucoin return in his dump truck before the accident and park it on the road and sidewalk area, facing south.
[62] He is familiar with certified persons being involved with traffic control on work sites but that there was none at this one. He never had any concerns regarding occupational health and safety on this particular site. Prior to any operators going onto a work site he and/or his brother, who owned the company, would do their own assessment regarding obstructions, hazards and the like. They never, however, had any discussion regarding traffic control with respect to this particular site or pedestrian safety.
[63] Alexander Kenneth Fraser lives in Chéticamp and runs a small hotel business immediately to the south of Maison Fiset. His wife operates a hair salon there as well. There is often traffic coming and going from his location. People using his business are either dropped off, or they park in an area in the front adjacent to the sidewalk.
[64] He did not see the incident that is the subject matter of the charge before this Court however, did see the dump truck parked partially on the road and partially on the sidewalk. It had never been an issue in the past with dump trucks located there, nor were there any concerns that went unaddressed with regards to Mr. McPhee and the project site.
[65] Andre Aucoin lives in Chéticamp and for the past 19 years has driven a dump truck for Chiasson Brothers. On August 13th, 2010 he was removing debris from Maison Fiset. He arrived about 8:15 in the morning and was driving a 2001 Sterling red dump truck with a red box. He is very familiar with this vehicle having driven it since it was new. It is 25-26.5 feet long with a width of 8 2/3 feet, the roof of the cab to the ground is 10-11 feet and the back of the box is 9 feet 6 inches high with the box from the ground being 10-11 feet as well.
[66] He was shown photos numbered 22, 23 and 24 from Cst. Bonnell’s report. They are not photos of his 2002 Sterling Y11 dump truck, as indicated in the report, but in fact are of Mr. LeBlanc’s Louisville dump truck. It is not his vehicle, but in terms of size it is about the same. He then looked at photos in Exhibit C-7 and indicated those marked as numbers 009, 010, 011 and 012 are of his dump truck.
[67] On the morning of August 13th they were moving debris as requested by Mr. McPhee, who he considered to be the “man in charge” on the job site. Just after lunch Mr. LeBlanc took a load and was returning with an empty truck when he was unable to get into the driveway because the boom truck was parked there. Mr. Aucoin therefore parked his vehicle on the sidewalk with a set of wheels being on it and one set on the parking lane portion of the road, being about 6-7 feet from the driveway. The alternative parking spot at L’Artisanale was full, which is where he would have parked if there was room. It was across the road.
[68] He advised Mr. Deveau he would stop traffic to allow him to back the boom truck out. He told Mr. Deveau that he was “good to go” as traffic was stopped both ways on the road and it was clear. He was across the road, in the south bound lane near the guard rail when he said this. He never saw the young boy on the sidewalk.
[69] He never had any discussions with Mr. McPhee regarding the parking of his vehicle on the site and he had been there six to seven times prior to August 13th. Nor did he ever have any discussions regarding traffic control with him or any other safe work practices. He was never told not to park where he did.
[70] Mr. Aucoin indicated with the initials “A.A.”, in red, on the large photo where he was specifically on the road when he told Mr. Deveau he was okay to re-enter the driveway. He undertook directing Mr. Deveau on his own, no one asked him to do it.
[71] Mr. Aucoin indicated there was a lot of traffic in this area on this August day with three to four cars backed up to the south as well as to the north. From his position on the road he was not however able to see the sidewalk behind his truck to the south. He did not see the young boy on the sidewalk before he told Mr. Deveau to proceed nor did he go and look behind his truck to see if it was safe to do so. There was not anyone positioned at his dump truck to look for pedestrians.
[72] Mr. Aucoin never had any safety concerns at this job site, there were no problems on any other days with respect to vehicles entering and exiting. This was the first time he parked on the street.
[73] He confirmed he paid the fine for the summary offence ticket he received.
[74] Cst. Brian Bonnell, a member of the R.C.M.P., was qualified as an expert witness regarding traffic reconstruction and analysis as such relates to the cause of vehicle/pedestrian collisions.
[75] Cst. Bonnell along with Cst. Owen MacKenzie attended on August 13th, 2010 at the scene a little after 3:00 p.m.. The object of their investigation was to attempt to determine a cause of the motor vehicle crash. Their report was tendered as an exhibit including numerous photos of the scene.
[76] At page 6 of the report:
Both the view of the boom truck and male youth was obstructed to some degree by the parking of the red dump truck. Both the boom truck and male youth entered into the driveway of the Maison Fiset Auberge Inn at the same time with a decreased knowledge of each others’ presence. A collision occurred between the truck and the bike.
The male youth and his bike went under the boom truck with the right front passenger tire going over the youth and the bike along with the rear passenger tires.
The male youth was transported to hospital where he succumbed to injuries sustained in the collision.
[77] Gail Whelan is a ten year officer with the Occupational Health and Safety Division of the Department of Labour and Advanced Education and the informant and principle investigator with respect to the events of August 13th. She attended the collision site first on August 16th, 2010. The site had been shut down and there was no manager or employees present. She took photos and preliminary measurements as well as some short video clips. She prepared a sketch of the site and took numerous photos, all of which were tendered.
[78] Darren McPhee described himself as a contractor and carpenter who became acquainted with Harvey Bourgeois years prior to 2010 when he did some restaurant renovation work for him as a carpenter in Yellowknife.
[79] Mr. McPhee was returning to Cape Breton from Western Canada and was asked by Mr. Bourgeois to renovate an Inn for him in Chéticamp. He was to arrange for sub-trades to undertake this work. Mr. Bourgeois had come to Cape Breton as well and they had compiled a list of people that Mr. McPhee could call on.
[80] They had an oral agreement. Mr. McPhee knew from the architectural drawings what was needed and what work was required. He does computer generated 3D design work and would send any changes by email to Mr. Bourgeois for approval. The two never had any occupational health and safety discussions but safe practices were in place, including the use of the snow fence to keep people off the property and debris from escaping, and there were regular conversations regarding the use of harnesses, and trip hazards.
[81] Mr. McPhee never turned his mind to the issue of vehicles coming in and out of the work site. The driveway was “nice and wide”, and has good visibility in both directions, as this is a straight stretch, he felt there was “lots of room” and never therefore had any discussions with anyone in this regard.
[82] Mr. McPhee was very familiar with Mr. Deveau and had no concerns with respect to his performance on this site. On the date in question he was present on the site and was aware that Mr. Deveau was there to remove sections of the roof.
[83] Mr. McPhee had put rope across the driveway to prevent anyone from coming into the driveway when Mr. Deveau was there with the boom truck. During the lunch break Mr. McPhee remained at the site. After lunch he was at the back of the property and involved with a tree that had to be removed.
[84] He had a discussion with Mr. Deveau that he was not to operate the truck or to lift anything off the roof until he was present.
[85] There were no traffic concerns in his estimation, other than the congestion in the driveway with the boom truck there. He was aware that because of its presence others had to park across the road.
[86] He did not see the collision between the boom truck and the boy. He recalls people yelling about an accident, he walked to the driveway, saw Mr. Deveau outside of the truck and the boy on the ground. He asked Mr. Deveau what happened and the rest is a “blur to him”. He recalls the ambulance coming and then contacting Mr. Bourgeois.
[87] McPhee’s Contracting is not a Limited company. He described himself at trial as the project manager but felt prior to this incident that he was the lead carpenter. In response to the question that others saw him as the “boss” in that he was directing tasks for 5823 N.W.T. Limited, he said that such was an evolved position.
[88] Mr. Bourgeois paid him by direct deposit for hours worked and his pay also included HST which he acknowledged was because he was providing a contractual service as compared to being an employee. He was the only person on site to receive such.
[89] This was the first project he had managed and acknowledged he did not have any courses from the Construction Safety Association of Nova Scotia as to how to manage a project. He did not utilize any hazard assessment forms, policies or checklists or develop any safe work practices.
[90] August 13th was a very busy day with an excavator on site, a boom truck and dump trucks, but acknowledged he never turned his mind to any hazards associated with these big vehicles being in a very narrow driveway.
[91] Mr. McPhee knew that over the course of the project from the spring to mid-August there was a significant amount of pedestrian traffic on the sidewalk and that the snow fence was as much to keep people off of the project as it was to keep debris from going on the road. He acknowledged that he was concerned enough with pedestrian traffic to build the fence but that pedestrian safety with respect to the persons or vehicles entering and exiting the site was not specifically addressed.
[92] Mr. McPhee assumed that Mr. Bourgeois had received permission from the nearby L’Artisanale for vehicles to park at their location and that he himself had specifically directed workers to park there. He did not want vehicles obstructing the driveway as it was only one-lane in width and anytime two vehicles were on-site arrangements would have to be made to clear it however nothing formal with respect to the same was ever put in place.
[93] On August 13th he saw the dump truck parked on the sidewalk, partly on the curb and facing in the wrong direction.
[94] As this is a regulatory offence the law from R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 is applicable.
[95] As noted by Justice Dickson, (as he then was), strict liability offences are those:
Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.
[96] The Occupational Health and Safety Act, R.S.N.S. 1996, c.7, places certain responsibilities and obligations on classes of persons as it relates to health and safety of persons at or near a workplace.
[97] Section 2 of the “OHSA” provides:
Internal Responsibility System
The foundation of this Act is the Internal Responsibility System which
(a) is based on the principle that
(i) employers, contractors, constructors, employees and self-employed persons at a workplace, and
(ii) the owner of a workplace, a supplier of goods or provider of an occupational health and safety service to a workplace or an architect or professional engineer, all of whom can affect the health and safety of persons at the workplace,
share the responsibility for the health and safety of persons at the workplace;
(b) assumes that the primary responsibility for creating and maintaining a safe and healthy workplace should be that of each of these parties, to the extent of each party’s authority and ability to do so;
(c) includes a framework for participation, transfer of information and refusal of unsafe work, all of which are necessary for the parties to carry out their responsibilities pursuant to the Act and the regulations, and
(d) is supplemented by the role of the Occupational Health and Safety Division of the Department of Labour and Advanced Education, which is not to assume responsibility for creating and maintaining safe and healthy workplaces, but to establish and clarify the responsibilities of the parties under the law, to support them in carrying out their responsibilities and to intervene appropriately when those responsibilities are not carried out. 1996, c.7, s. 2; 2010, c.66, s. 1; 2011, c. 24, s.1.
[98] Section 3 provides:
Interpretation
In this Act,
(f) “constructor” means a person who contracts for work on a project or who undertakes work on a project himself or herself.
(aa) “project” means a construction project, and includes
(i) the construction, erection, excavation, renovation, repair, alteration or demolition of any structure, building, tunnel or work and the preparatory work of land clearing or earth moving, and
(ii) work of any nature or kind designated by the Director as a project.
[99] Section 23 provides:
Nature and extent of duties and requirements
(1) A specific duty or requirement imposed by this Act or the regulations does not limit the generality of any other duty or requirement imposed by this Act or the regulations.
(2) Where a provision of this Act or the regulations imposes a duty or requirement on more than one person, the duty or requirement is meant to be imposed primarily on the person with the greatest degree of control over the matters that are the subject of the duty or requirement.
(3) Notwithstanding subsection (2), but subject to subsection (5), where the person with the greatest degree of control fails to comply with a duty or requirement referred to in subsection (2), the other person or persons on whom the duty or requirement lies shall, where possible, comply with the provision.
(4) Where the person with the greatest degree of control complies with a provision described in subsection (2), the other persons are relieved of the obligation to comply with the provision only
(a) for the time during which the person with the greatest degree of control is in compliance with the provision;
(b) where simultaneous compliance by more than one person would result in unnecessary duplication of effort and expense; and
(c) where the health and safety of persons at the workplace is not put at risk by compliance by only one person.
(5) Where the person with the greatest degree of control fails to comply with a provision described in subsection (2) but one of the other persons on whom the duty or requirement is imposed complies with the provision, the other persons, if any, to whom the provision applies are relieved of the obligation to comply with the provision in the circumstances set out in clauses 4(a) to (c) with the necessary modifications. 1996, c. 7, s. 23.
[100] Counsel in their written submissions to the Court acknowledge that there is very little dispute between the evidence of the witnesses as to the events of August 13, 2010 as well as the role of Darren McPhee on the site. The evidence of all the Crown witnesses was credible and accepted by this Court. Any discrepancies are minor in nature and do not impact on the Courts’ findings herein.
[101] Mr. McPhee was clearly seen and carried out the duties as the project supervisor, being responsible for sub-contracting jobs, hiring personnel and assigning daily tasks. The principles from R. v. W. (D.) [1991] 1 S.C.R. 742 apply to Mr. McPhee and again there is nothing in his evidence that is of a nature that calls it into question and I accept it.
[102] It is the finding of this Court that the activity being carried out at Fiset Maison at 15050 Cabot Trail Highway, Chéticamp, Nova Scotia was a “project” within the definition of the same at subsection 3(aa) of the “OHSA”.
[103] The Court also finds that Mr. McPhee was a “constructor” within the definition at subsection 3(f) of the same legislation.
[104] The Crown’s position is that Mr. McPhee failed to ensure the safety of Dylan LeBlanc, being a person near a project, within the scope and intent of subsection 15(a) of the “OHSA”. Mr. Craig argues that pursuant subsection 23(2) of the “OHSA” Mr. McPhee was the person primarily responsible for such given he had, based on the evidence before the Court, the greatest degree of control over the matters for which he had this duty.
[105] Counsel for the Crown argues in his written submissions:
There is no contest on the evidence in relation to the features of this work site. It fronts the only sidewalk directly adjacent to Route 19 (also referred to by witnesses as the Cabot Trail). This is the main north-south thoroughfare running through Chéticamp. It is a busy highway generally, and was busy on the Friday August afternoon when this tragic incident involving young Dylan LeBlanc occurred. The sidewalk has significant volume of pedestrian traffic, and significantly, it is not unusual for cyclists, and children, to be utilizing the sidewalk...
There is no contest on the volume and nature of truck traffic at the site during the entire period of construction of the Maison Fiset, and that trucks regularly entered and exited the site via the very driveway (ie. the one driveway) where Dylan was struck by Gordon Deveau’s vehicle. In this respect, the events of that Friday August afternoon (ie. trucks entering and exiting the driveway), were not unusual. In fact, it was quite the opposite. This was a regular, virtually daily, occurrence.
The Crown is not alleging that the defendant’s culpability on this charge flows from anything in particular that he did on this fateful Friday afternoon...
The defendant’s culpability, as Project Manager, flows from his failure to take reasonable precautions to ensure that these regular, and virtually daily, tasks are performed in a manner to ensure the health and safety of persons at or near this site.
[106] Mr. Craig then refers to the evidence of Mr. McPhee wherein he indicated this was his first ever project manager position and the only measure taken with respect to the work site, and pedestrian traffic, was the installation of a snow fence. Mr. McPhee testified he was cognizant of pedestrian traffic along the sidewalk however conducted no hazard assessment in relation to vehicles entering and exiting the driveway and associated risk related to such sidewalk traffic. Mr. Craig points to his stated evidence that “he did not turn his mind to it”.
[107] Mr. Craig further argues that the presence of a young boy such as Dylan should have been an absolutely foreseeable risk to Mr. McPhee, and as he did not consider the same, he failed to put in place reasonable protocols to control the risk and protect the safety of individuals and which is his legislated duty. He is thus culpable in relation to the offence charged.
[108] Mr. Craig further argues given the lack of any protocols with respect to traffic control, and Mr. McPhee never considering the necessity or appropriateness of the same, such removes any defence of due diligence.
[109] Mr. Patriquin on behalf of Mr. McPhee urges the Court to find that the Crown has not met the burden on it in establishing the actus reus of the offence. The situation which unfolded unfortunately on August 13th, 2010 was not reasonably foreseeable.
[110] In his written submission Mr. Patriquin argues:
...it is the contention of the defence that this accident was not a reasonably foreseeable hazard. Mr. McPhee stated at the beginning of the project he reviewed the driveway going into the project work site. He noted the width of the sidewalk, the width of the roadway, and the excellent sight lines in both directions. There was no potential hazard evident to cause any concern for vehicles entering and exiting the driveway. There was no turn or hill or obstruction noted which could have potentially caused difficulty. In fact, everybody who testified about exiting and entering the driveway, no matter what size vehicle they were driving, indicated that there was never any difficulty in doing so...
What was different regarding events that lead to the death of Dylan LeBlanc? The answer to that question was the unprecedented, improper, in fact, illegal action on the part of Mr. Aucoin in parking his dump truck where he did. Parking of vehicles in that manner had not happened previously on this job site. Only one dump truck was required to be on the job site at any one time. Prudent actions on the part of Mr. Aucoin would have included his driving down the street and turning around and coming back upon seeing that there was already a dump truck on the property. The few minutes that that action would have taken would have allowed for Mr. Deveau to safely exit and re-enter the driveway. Mr. Deveau and Dylan LeBlanc both would have been able to see each other as part of that action. Dylan LeBlanc could have easily stopped his bicycle, since there was no impediments on the sidewalk as it was clear and clean where he was riding his bicycle. Also, Mr. Deveau could clearly have seen Dylan LeBlanc, and this tragedy would have been easily avoided. Mr. Aucoin could have parked his dump truck across the street, down the street, or in fact in the middle of the street, and it would have posed less of a hazard than what he did. The actions of Mr. Aucoin clearly caused the accident, and those actions could not have been anticipated.
[111] In the alternative, Mr. Patriquin argues that should the Court find the Crown has proven the actus reus of the offence beyond a reasonable doubt, Mr. McPhee has open to him the defence of due diligence in that he took all the reasonable care of a reasonable person in the circumstances to prevent the happening of the act.
[112] In particular, Mr. McPhee at the commencement of the project viewed the driveway for its width and sight lines, knew the drivers of the vehicles were experienced operators, advised Mr. Deveau that he, (Mr. MacPhee), was to be present at all times during the operation of the boom truck, Mr. McPhee put a rope across the driveway so as no other vehicles could exit or enter, and for the months this project had been in operation there had never been any vehicles parked on the sidewalk, nor had anyone expressed any concerns to Mr. McPhee regarding the exiting or entering of vehicles on the property. Mr. McPhee was not in contravention of any other policies or directives from Mr. Bourgeois or any government agency.
[113] Counsel have provided me with decisions from this Court that are applicable and very helpful.
[114] The issue the Court must decide is whether the Crown has proven beyond a reasonable doubt that Darren McPhee, as a constructor, took every precaution that was reasonable in the circumstances to ensure the health and safety of persons at, or near this project.
[115] Mr. Craig argues that the burden on the Crown is in relation to the flow of vehicular traffic at the Maison Fiset project site, with its location on the main thoroughfare in Chéticamp and with pedestrian and bicycle traffic in addition to vehicles being a known fact. What is required is proof of the general hazard/risk not of a specific hazard scenario.
[116] Mr. Patriquin asserts the scenario that unfortunately occurred on August 13, 2010, was not a reasonably foreseeable hazard for Mr. McPhee and the Crown has not proven beyond a reasonable doubt that such was the case.
[117] Counsel are both in agreement that subsection 15(a) of the “OHSA” is a general-duty provision in this legislation. What counsel disagree on are the elements of this general-duty offence as relates to the actus reus.
[118] In R. v. Della Valle, 2011 NSPC 67, Judge Ross rendered a decision with respect to an offence under section 17 of the “OHSA”. Mr. Della Valle was charged that he did “as an employee of the Cape Breton Island Housing authority failed to take every reasonable precaution in the circumstances to protect the employee’s own safety and that of other persons at or near the workplace”. He, along with three other persons were charged as the result of a discovery of asbestos-containing vermiculite insulation in rental properties belonging to the Cape Breton Island Housing Authority.
[119] In R. v. Della Valle (supra), the Crown argued section 17 of the “OHSA” is a general-duty provision made necessary in regulatory legislation “by the fact that the regulators cannot foresee every possible continency” (see para. 4).
[120] Judge Ross at paragraph 35 states:
A so-called general-duty provision like s. 17 is included in the OHS Act... because it is not possible to foresee every safety-related circumstance which will arise in a workplace. It is not possible to lay out a blueprint for how every employee should act in every contingency. In this sense it is akin to section 100 in the Motor Vehicle Act which creates a positive duty to drive ‘in a careful and prudent manner having regard to all the circumstances’ and provides an offence for not doing so. While the MVA contains many rules about what drivers must do (or not do) in particular situations, it is not possible to foresee all possible situations which may arise on a highway.
[121] Judge Ross, in formulating what the “general-duty provisions” in legislation such as the “OHSA” involve, reviewed numerous decisions from the Supreme Court of Canada as well as R. v. Eagles [2009] NSPC 49, a decision of Judge Tax. Judge Ross noted the differences where a specific actus reus (ie. failing to ensure guard rail is installed, prohibition against migratory game birds being hunted within a certain distance of a baiting station, the depositing of deleterious substances in water frequented by fish and the like), are stated versus general-duty obligations in s.17 of the “OHSA” for example.
[122] Subsection 15(a) of the “OHSA” establishes a similar general-duty requirement on constructors. The wording and lack of specificity in that provision is general in nature and thus falls into the category as outlined by Judge Ross as it is not possible to foresee every safety related circumstance which may arise. To restate the issue therefore, the Court must determine what is reasonable in the circumstances.
[123] This was noted by Judge Ross at paragraph 47:
The Crown may, as a result, have a more difficult case ‘prime facie’ case to prove where the offence charged is a general-duty provision such as the one here. It must prove beyond a reasonable doubt that there were things which the defendant could and should have done to protect health and safety that he did not do, things which a reasonably prudent person in his position would have done. But if successful in making such a case, the Crown would cut the legs out from under the ‘all reasonable steps’ defense. As always, the Crown need not prove a mental element. (emphasis added)
[124] Mr. Patriquin in his written submission argues that “the actions of Mr. Aucoin clearly caused the accident, and those actions could not have been anticipated”.
[125] Mr. Patriquin refers the Court to an excerpt at page 10-29 from Norm Keith’s, Canadian Health and Safety Law (Canada Law Book 2012) wherein the author states:
The defence of due diligence to charges under the applicable health and safety legislation does not impose a duty to plan for and anticipate every possible failure of equipment, machinery or process. There is a requirement to anticipate the reasonably foreseeable hazards by an employer that is making a strong effort to comply with the applicable health and safety legislation on an ongoing basis.
The internal responsibility system of shared duties or various workplace stakeholders is an important concept to remember in considering the defence of due diligence. An effective responsibility system will result in due diligence. Workers, as well as employers and supervisors, have a duty to comply with the applicable health and safety legislation and its regulations. Therefore, many Courts have held that an employer is not liable when the circumstances of an accident were attributable to the inadvertence, mistake or negligence of an employee.
[126] This Court has heard evidence, received exhibits and written submissions in regards to the charge against Darren Joseph McPhee, not Andre Aucoin. The role of Mr. Aucoin as it relates to this matter will be decided in a separate trial. As Judge Ross stated at paragraph 7 of Della Valle (supra),
Responsibility for health and safety at the workplace is diffuse in the sense that no one person bears it alone. The OHS Act attempts to ensure that systems are in place to monitor and address issues of health and safety. Others besides Mr. Della Valle have been charged with failing to discharge their s. 17 duty. It is clear that any failings do not devolve to this defendant alone. At the same time, responsibility, even for systemic issues, must at some point rest on individual shoulders. The court's task is to consider what that responsibility entailed (in the particular circumstances of this case) and then to determine whether that responsibility was exercised as the law required. The case is confined to Mr. Della Valle's role; is not an inquiry into the broader aspects of this highly publicized matter nor is this an adjudication on the responsibility of others who were charged.
[127] Any illegal or negligent acts by Andre Aucoin do not remove the legislated obligations on Darren McPhee in this circumstance.
[128] In determining how to classify the actions of a defendant, such as Mr. McPhee in a general-duty provision obligation, Judge Ross put succinctly what a Court must consider. At paragraph 47:
The Crown... must prove beyond a reasonable doubt that there were things which the defendant could and should have done to protect health and safety that he did not do, things which a reasonably prudent person in his position would have done.
[129] What then was the position of Mr. McPhee vis à vis the Maison Fiset project and what was his knowledge base?
Darren McPhee’s Position
[130] It is clear from the evidence, including that of Mr. McPhee, his position at this work site was one of a supervisory nature. The evidence before the Court establishes the following regarding Darren McPhee:
- He used a trailer onsite for an office. It had a telephone and computer.
- He was paid HST as part of his employment with 5823 N.W.T. Limited because of the contractual nature of his relationship.
- He acknowledges that he was the only employee to be paid in such a fashion.
- He hired the carpenters and other trades persons who came on the construction site.
- He directed the daily tasks of workers.
- Any changes to the renovations were made by him and forwarded to Mr. Bourgeois for approval.
- The sign for the Maison Fiset on the property included an insignia with the words “McPhee Contracting”
- He was present onsite almost daily.
Construction Project Work Site
[131] The following is established by the evidence and was acknowledged by Mr. McPhee:
- Project fronted on the main thoroughfare running north and south on the Cabot Trail Highway through Chéticamp, Nova Scotia.
- Project fronted on a sidewalk known to be frequented by pedestrian traffic.
- He had a snow fence erected because of pedestrian traffic as well as debris.
- He had conversations as part of workplace safety regarding the use of harnesses and trip hazards.
- Project commenced April/May, 2010 and would be lengthy.
- Project had one dirt driveway for access to the site.
- The driveway is wide enough for only one commercial vehicle.
- The driveway exits onto a street portion of roadway.
- Project would require the use of excavators, boom trucks, dump trucks and work crews.
- Equipment and/or vehicles and/or workers were present at the direction of Mr. McPhee, and on specific dates.
- There was no traffic control on site.
- There is no parking area adjacent to or in front of this work project.
- Work would be conducted at the back, front, top, (lawn) and side of this project.
[132] Mr. McPhee was the “Director of Operations” for lack of a better term at this job site. He knew what had to be done, he knew who was going to do it and he knew when it was going to be done. He knew this project involved numerous pieces of heavy equipment and project workers. He knew there was a one lane driveway by which all vehicles working on the project were to enter and exit. He knew all sides of the project would have workers and/or machinery on them at any given time and at possibly the same time (which was the case on August 13, 2010).
[133] Mr. McPhee ought to have known the possibility existed of the requirement by some vehicles to enter and some vehicles to exit while others were already on the property and that this would occur at the same time. That is not a fanciful or unforeseeable possibility given the very narrow driveway and limited working space.
[134] Mr. McPhee, because he knew the times when the work site would be “extra” busy ought to have foresaw the need for traffic control given the physical characteristics of the work site and its proximity to a very busy highway that abutted a sidewalk known to him to have pedestrian traffic.
[135] In his circumstance as a constructor it was reasonable that he ensure the health and safety of persons at, or near this project, such that he engage traffic control personnel. Mr. McPhee was, in the words of subsection 23(2), “OHSA”, “the person with the greatest degree of control over the matters that are the subject of the duty or requirement”.
[136] What unfortunately unfolded on August 13, 2010 was reasonably foreseeable in the circumstances. The work being carried out on that and every other day, were known in advance by Mr. McPhee as he was the one who directed the operation.
[137] The obligations on Mr. McPhee pursuant to subsection 15(a) are obligations by law on him as the constructor and are not dependant on him being directed by Mr. Bourgeois or any other person and/or company.
Due Diligence
[138] Referring to, and adopting Judge Ross’ comments in Della Valle (supra), at para. 45, this Courts finds that Mr. McPhee has not met the burden on him as it relates to due diligence:
...The second branch of a due diligence defense would have the defendant prove, on a balance of probabilities, that he took all reasonable steps to avoid the commission of the offence. Whether either burden is met is assessed on all the evidence at trial, led by both parties, regardless of which party bears the legal onus. If ‘precautions’ may be equated with ‘steps’ and ‘every’ to ‘all’, then ‘every reasonable precaution’ equates to ‘all reasonable steps’. Being equivalent terms, if the Crown proves the absence of such beyond a reasonable doubt, it is logically impossible for the Defense to establish the same proposition, on the same evidence. In other words, if the Crown succeeds in proving the actus reus in a general-duty provision such as s. 17, which a court must first determine, any analysis of the ‘all reasonable steps’ defense becomes moot and it should be unnecessary for a court to consider it.
[139] If the Court were to consider due diligence Mr. McPhee did not take any steps with respect to traffic control. He was quite forthright in his evidence that he did not even consider such, thus the defence put forward of due diligence fails.
[140] The “OHSA” and other pieces of federal and provincial legislation that are regulatory in nature are in place for “public welfare” and “public safety”, with general or specified acts prohibited in the public interest. (see R. v. Sault Ste. Marie (City), (supra)).
[141] Persons who are obligated under such legislation must act reasonably in the circumstances. To hire or designate traffic control on a busy construction site, on a small lot, which uses a public roadway for access is reasonable. Mr. McPhee’s failure to do so unfortunately resulted in a reasonably foreseeable hazard occurring.
[142] In all the circumstances here I find Mr. McPhee guilty.