View cases - Stewart McKelvey

11[29] Defense has pointed out the paucity of medical evidence in this trial concerningactual harm or risk. That, however, is not a fatal flaw in the Crown’s case. Persons at aworksite are expected to act in timely fashion on reliable information about possibledangers. Such risks may not materialize but nevertheless be real (nobody may actuallyget caught up in an exposed moving machine part) or a perceived risk may later turn outto be no actual risk at all (subsequent medical research debunks earlier beliefs abouthealth effects of a particular substance). For the purposes of s.17 of the OHS Act,however, these are one and the same with a case where a known risk materializes intoactual harm. The duty to act arises when there is a “potential health hazard” identifiedby an individual at a worksite, or known as a result of advice from a reliable source.Where someone in the position of the defendant has knowledge of a possible dangerfrom a credible source, this alone may precipitate a duty to take positive preventivemeasures. Whether this perceived risk is subsequently shown to be an actual, real risk– either in Court or in the broader scientific or public arena – is immaterial. This is, Ithink, a justifiable extension of the line of reasoning found in R. v. Timminco (2001) 153C.C.C. (3d) 521 and cited in R. v. Eagles [2009] N.S.J. No 520 at para 77.[30] In the case of asbestos, one is more in the realm of health than safety, in theusual sense of those words, although the two concepts overlap to a degree. The risk ismore to the long-term well being of a person. Asbestos is said to pose little risk ofimmediate harm; rather, the documents in evidence before me speak to possible longtermhealth effects which manifest long after a person has been exposed.[31] I have no expert medical evidence on the danger to human health posed byvermiculite which contains asbestos. No employee or tenant has been diagnosed withany asbestos-related illness, and hopefully none will be. More pertinent, however, iswhat the defendant was given to believe of the potential risks posed to workers andtenants. This belief came from a credible source: Mr. Muggah at Atlantic Indoor AirAudit Co. This firm had been entrusted with the analysis of the sample. Its advice aboutsteps required to minimize the risk of living and working near this “proven humancarcinogen” should have been heeded, particularly in the absence of any indication tothe contrary. Indeed, the defendant has never contended that he disbelieved ordistrusted what he was told.[32] Defense points out that there is little (if any) evidence about what workersactually did subsequent to October 2005, or how tenants behaved in regard to use ofthe attic spaces. I think, however, that it is safe to infer, from what is known of the stepstaken by the defendant, MacNeil and Routledge, that proper breathing apparatus wasnot employed, nor were the attic hatches sealed. And I do have before me directevidence that an outside contractor did work in places containing the tainted vermiculite