View cases - Stewart McKelvey

14[41] Various other cases, cited in Eagles and elsewhere, belong to the OHS realm. InR. v. Timminco Ltd. (2001) 153 C.C.C. (3d) 521 an employer was charged with breachof a requirement to fence or guard any machine with an exposed moving part whichmight endanger someone’s safety. The regulation created a positive obligation, but itwas a specifically defined one. In a similar vein is R. v. General Scrap Iron and MetalsLtd. 2002 CarswellAlta 869 where the charge was failing to take all reasonable steps toensure that materials were contained so as to avoid a potential danger fromdislodgement. This was coupled with a more general charge of failing to ensure thehealth and safety of a worker. In R. v. Canada Brick Ltd. [2005] O.J. No. 2978 we see acharge of failing, as an employer, to take every precaution reasonable in thecircumstances for the protection of a worker at a workplace, a general duty offencesimilar to the one facing Mr. Della Valle. In Canada Brick “particulars” were also given,stipulating the specific omission which the Crown relied on, i.e. the failure to implementinterim safety measures to prevent access to the exposed moving parts of a machine(the company being in the process of completing steps to provide a guard on themachine as ordered by an inspector).[42] The foregoing is certainly a very incomplete canvass of case law, but it mayserve to contrast the duties and prohibitions, general and specific, which one finds inregulatory law. It may serve to preface what I see as an implication for proof ofregulatory offences, and for the availability of the due diligence defense, in cases wherethe defendant is charged with breach of a so-called “general duty provision” such as theone found in s.17 of Nova Scotia’s OHS Act.[43] To summarize, it seems that the Supreme Court’s formulations of strict liability,and its legal companion the due diligence defense, occurred in cases where there wasa prohibition against doing a specific thing. Cases have applied the formulation tocases where the charge was failing to carry out a positive duty, but even in these casesit appears there were particular measures - set out in other regulations, or aninspector’s order, or recognized industry standards – which ought to have been taken.Phrases such as “particular event”, “prohibited act” or “proscribed act” are employed.The charge against Mr. Della Valle admits to no such specificity.Due diligence defense[44] The due diligence defence has two branches. These are described in MacMillanBloedel, supra, at para. 47 and 48. The classic formulation, from Sault Ste. Marie, is asfollows : “The defense will be available if the accused reasonably believed in a mistakenset of facts which, if true, would render the act or omission innocent, or if he took all