View cases - Stewart McKelvey

12without any knowledge of this and without taking any precautions respecting asbestos.Prime facie case[33] In Eagles (above) at para. 73 the judge says, referring to R. v. City of SaultSte.Marie [1978] 2 S.C.R. 1299 and R. v. Wholesale Travel Group Inc. [1991] 3 S.C.R.154, “. . . the Court observed that the government can, as a practical matter, do nomore than demonstrate that it had set reasonable standards to be met by persons in theregulated sphere and to prove beyond a reasonable doubt that there has been a breachof those standards by the regulated defendant.” At para. 80 the court indicates that “toestablish a prime facie case the Crown must prove the actus reus beyond a reasonabledoubt.” At para. 83, the court states that a review of the specific provision in issue inthat case “was required in order to ascertain whether the Crown has led some evidenceon all of the essential elements in order to establish its prime facie case.” The use ofthe term “prime facie case” coupled with “some evidence” risks confusing the Crown’sburden in a trial of a regulatory offence with the burden of proof on the Crown in apreliminary inquiry. Timminco (above)and other cases may have applied suchterminology, but I think it is best avoided.Workplace / other persons[34] Every unit containing vermiculite insulation became a “workplace” any time anemployee or contractor of CBIHA attended there to do maintenance or repairs. Tenantsoccupying such premises were then brought within the ambit of s.17 as “other persons”.While the agreed statement is not completely clear as to how many units were involvedin the 515 work orders (see par.14) it states specifically that the contractor, AmblynnElectric was dispatched to 22 sites where vermiculite was present. The statement alsonotes that CBIHA employees worked in attic areas between October 2005 and April2006. It seems safe to infer, on all the evidence, that at least some of these atticscontained vermiculite. As noted, even if an employee did not enter the attic attendanceat the housing unit visited upon it the legal definition of a “workplace” and made thetenants “other persons” deserving of protection under the OHS Act.general duty offences