View cases - Stewart McKelvey

2REASONS FOR DECISIONIntroduction[1] Mr. Della Valle was charged on July 16, 2010 with an offence under theOccupational Health and Safety Act of Nova Scotia which is alleged to have occurredbetween October 25 th , 2005 and April 6, 2006. The Information charges that “as anemployee of the Cape Breton Island Housing authority he failed to take everyreasonable precaution in the circumstances to protect the employee’s own safety andthat of other persons at or near the workplace contrary to s.17 of the OccupationalHealth and Safety Act”[2] Mr. Della Valle is one of three persons charged as a result of the discovery ofasbestos-containing vermiculite insulation in certain rental units of the Cape BretonIsland Housing Authority in 2006. Mr. Della Valle pled not guilty and the mattereventually went to trial in this court in June of 2011.[3] I have concluded that Mr. Della Valle is guilty of the offence and will set outreasons for this decision below.[4] S. 17 states that every employee, while at work, shall take every reasonableprecaution in the circumstances to protect the employee's own health and safety andthat of other persons at or near the workplace. Crown describes this as a “general dutyprovision” made necessary in regulatory legislation by the fact that the regulators cannotforesee every possible contingency.[5] Although the duty to act arises from the defendant’s employment with the CBIHA,the duty he is alleged to have breached was owed not only to other employees orworkers, but in large measure to tenants in various housing units owned and maintainedby CBIHA. This case is thus largely concerned with the possible risk to those “other