skip to main content

We have been advised that fraudulent emails and faxes regarding unclaimed insurance money have been received by members of the public from a source claiming to be Aird & Berlis LLP. These communications are not from Aird & Berlis LLP. Disregard them and do not engage with the sender in any way. Please report the attempted fraud by contacting the Canadian Anti-Fraud Centre.





Back to all publications
Jun 12, 2019

The Facts Control the Law

By Cynthia R. C. Sefton

A recent Ontario Court of Justice appeal1 overturned convictions of a company and its supervisor in connection with an accident that occurred at a wood processing facility. Unfortunately, a worker was seriously injured.

The Facts

In the course of the operation of a large industrial rip saw, an approximately 18” long wood splinter with the diameter of a broomstick was ejected from the saw at high velocity. The wood travelled 10 feet and struck an employee who was working at the end of another identical saw. The wood piece, described by the court as a “spear,” pierced the employee’s arm near his elbow and embedded deep into his flesh. He has lasting nerve damage and was never able to return to work.

The saw was manufactured in 2007. All moving parts were inside a dome, which could be opened for cleaning and maintenance. The openings for the input and the output were protected by metal guards or fingers that completely closed the openings until they were lifted or pushed down by a piece of wood being sawed. These fingers were designed to provide kickback protection as well as splinter protection. The company had also set up additional safeguards with respect to the input opening. The injured worker had been at the company for 35 years and said that he had never seen such a spear ejected from this or any other similar saw.

The cause of the accident was not determined. Manufacturer’s instructions said that there was a risk of “splinters” and that operators should not stand immediately in front of the opening. The instructions further stated that this risk could be eliminated by “proper maintenance and cleaning.” The injured employee was standing between 10 and 25 feet away from the saw in question. The defendants’ expert engineer testified that he was “baffled” as to how the accident could have occurred. After the accident, the expert did identify that two adjacent finger guards were “stuck” in the up positon. However, he testified that if the machine was running, this would have been eliminated by vibrations. As well, the stuck finger guards would not explain how the spear had gotten past the several other redundant barriers.

Trial Decision

The trial seemed to focus on the manufacturer’s instructions with respect to maintenance and cleaning. The sticking finger guards were the focus of the due diligence issues. Namely, were the defendants duly diligent in proper cleaning and maintenance? The trial court concluded that there was no evidence that the defendants conducted such cleaning and maintenance and that this was a failure to take all reasonable steps to exercise due diligence.

Appeal Decision

The appeal court concluded that the finding of lack of cleaning and maintenance was unreasonable and contrary to the evidence which was set out in the trial decision, namely that several employees were responsible for conducting daily checking and replacement of the saw blades and cleaning of the inside of the machine. One employee testified that approximately two hours before the accident, he had performed these tasks at the saw from which the spear was ejected.

In addition, the appeal court found that the guilty verdict was unreasonable. The prosecution argued that the very fact of the accident demonstrated that there could not have been proper cleaning. The appeal court rejected this. The fact that some of the employees did not use the precise words of the manufacturer’s manual in describing what they did was not conclusive. While the manual was important, at the end of the day, the issue was whether what the defendants actually did amounted to the exercise of reasonable care.

The appeal court declined to order a new trial.

Conclusion

Succeeding on a due diligence defence is not an easy task. Succeeding on an appeal where the issue turns on the facts is even more difficult. This defendant was required to spend money on a trial, an incomplete appeal (the first appeal judge was elevated to a higher court during the case), and then argue the appeal again. Undoubtedly, this was not an inexpensive exercise and it included the immediate retainer of an expert engineer to inspect the equipment and opine on causation. But what ultimately won the day was the existence of the right facts and ability to prove those facts in evidence to support due diligence.

Takeaways for Businesses

1. Identify risks before they result in accidents.

2. Have real procedures to address those risks and make sure such procedures are in clear, understandable language. Take into account the knowledge of those who perform the tasks to ensure the procedures are workable and safe.

3. Provide real training on the procedures. Consider feedback from workers on the usefulness of the training.

4. Monitor/supervise/update procedures and workers.

5. Enforce against breaches of the rules. When a “work around” leads to an incident, it is unlikely that this is the first time the work around was used.

6. Senior management needs to know what is happening on a day-to-day basis. There should be no disconnect between what management thinks is taking place and what is actually happening.

7. If it is not somehow documented and retrievable, it did not happen (or at least it is difficult to prove it happened).

“Do or do not. There is no try.” Yoda


1 R. v. Alpha Lumber Mills Inc and Sichanta, 2019 ONCJ 223.

Related Publications

Publications Article
CCAA Priming Charges May Supersede Statutory Deemed Trusts By Shakaira John, Ian Aversa and Gaurav Gopinath Oct 23, 2019 In Canada v. Canada North Group Inc., 2019 ABCA 314, the Court of Appeal of Alberta upheld the decision of the Court of Queen’s Bench of Alberta, which held that the Companies’ Creditors Arrangement Act permits courts to subordinate statutory deemed trusts in favour of the Crown to court-ordered ...
Publications Article
Doing Business in Canada - Fall 2019 Oct 18, 2019 Aird & Berlis is pleased to present the Fall 2019 edition of Doing Business in Canada. This publication was developed to provide a general overview of Canadian federal and Ontario law, and is intended for those planning to start, acquire or invest in a business in Canada.
Publications Article
A Mareva Injunction Refresher: Can a Strong Prima Facie Case of Fraud Alone Support an Inference of Asset Dissipation and/or Disposal Risk? By Mark van Zandvoort, Dennis M. O'Leary and Codie Mitchell Oct 09, 2019 In 1985, the Supreme Court of Canada decided Aetna Financial Services Ltd. v. Feigelman. The Court adopted the Ontario Court of Appeal decision in Chitel v. Rothbart, holding that a Mareva injunction is limited to circumstances in which there is a real risk that the defendant will remove its as...