Death not proof employer failed to ensure safety

Court dismissed charges that employer failed to train and instruct worker killed in grain pit

The Saskatchewan Court of Queen’s Bench has dismissed all charges against a Saskatchewan company in the wake of a grain terminal accident where a worker was buried in grain and suffocated.

Paul Cruse was hired on May 24, 2011, to work at a Rosetown, Sask. grain terminal operated by Viterra, a grain and oilseeds marketer and handler based in Regina. The terminal had two grain-receiving pits below the floor of a bay area where trucks entered and dumped grain through grates in the floor. Each pit funneled grain through a screen to bucket elevators that carried grain to various bins.

On Sept. 8, 2011, the assistant manager of the terminal was in the control room and noticed the grain in one of the receiving pits was flowing slowly. The instrument reading indicated that either the pit was empty or there was a blockage at the screen in the bottom of the pit.

The assistant manager later testified he asked Cruse to “look into the pit to see if there was any product there or if it was blocked in any way.” Cruse took a flashlight and looked into the pit from the grate above, observing that there was minor build-up on the grate but no grain in the pit. The assistant manager decided to dump the next load of grain into the pit in an attempt to flush the blockage.

About one hour later, the assistant manager noticed the grain was still flowing slowly, so he asked Cruse to take another look in the pit to see if it was empty or if grain was getting through. He then went over to a truck that had just arrived and asked the driver not to pull into the bay area yet because they were checking for a blockage.

A couple of minutes later, another terminal employee realized Cruse was inside the pit. Though no-one knew what he had been doing, it became apparent that Cruse had opened a hatch in the side of the bay area and climbed down into the pit. He had stepped into the grain that had accumulated, becoming engulfed and suffocating.

Viterra was charged under the Canada Labour Code and Saskatchewan Occupational Health and Safety Regulations for:

• Failing to instruct Cruse on how to unplug a blockage in the receiving pit
• Failing to ensure Cruse had the necessary training and supervision on responding to a blockage
• Failing to ensure Cruse was made aware of “every known or foreseeable health or safety hazard” such as being engulfed by free-flowing grain in the receiving pit.

The relevant provisions in the code and regulations stipulate that employers must ensure the health and safety of their employees by providing “each employee with the information, instruction, training and supervision necessary to ensure their health and safety at work” and be aware of hazards, and providing education to employees “whenever new hazard information in respect of a hazard in the workplace becomes available” before employees are exposed to a new hazard.

The court noted that the Crown bore the onus of proving each count against Viterra, and the Crown’s argument was that the proof of the worker’s death was prima facie proof of occupational health and safety violations, as established in the 1999 decision of R. v. Saskatchewan Wheat Pool. In that case, the Saskatchewan Court of Queen’s Bench found that “proving an injury to the worker proves that the employer did not ensure his health and safety.”

Employer’s failure to meet duty of care not proven: Court

The court noted that following the original decision in Saskatchewan Wheat Pool, the province’s Court of Appeal found that the legislation imposes a duty on employers to take “all reasonable steps to ensure employee health and safety,” so the onus is to prove a prima facie breach of the employer’s duty of care occurred. The fact of a worker’s injury or death does not prove a breach of care, said the court. In addition, Viterra was charged with failing to instruct Cruse properly — something of which simply the fact of an injury or death did not establish.

The court heard evidence that Cruse received computer-based training when he was hired, which covered safety, the dangers of a grain terminal, the dangers of entering a confined space such as a receiving pit, and proper procedures for entering a confined space. Cruse completed 12 training modules, of which four referred to the dangers of being engulfed. At the end of each module, Cruse was tested on the topic and had to score 80 per cent to pass.

In June 2011, Cruse took five hands-on training courses, including one on safe work permits. However, he had not received hands-on training on confined space entry by the date of the accident. Though the Crown argued the hazards of confined spaces were buried in a large amount of training materials, the court disagreed, finding such hazards and the proper safety procedures were emphasized — including warnings of death, graphics, and an example of pits as confined spaces.

The court found Cruse’s training taught him that a receiving pit was a confined space, there was danger inherent in entering a confined space, he was not to enter a confined space until he had received the necessary training, and he was to follow prescribed safety procedures for entering a confined space. As a result, the court determined Cruse received sufficient training to ensure his health and safety and Viterra showed due diligence.

The court also found that the assistant manager did not instruct Cruse to enter the pit — it was a decision he made without anyone’s knowledge. Cruse was only instructed to look into the pit to see if there was a blockage. Since the assistant manager didn’t tell him to unplug it, he wasn’t obliged to instruct him on how to do it, said the court. As a result, the charge that Viterra had failed to provide proper instruction couldn’t stand.

“In light of the training and education that Mr. Cruse received from Viterra, and in light of the innocuous task that he had been given — and that he had performed just an hour earlier — a task that did not require any particular supervision, since it involved only looking through a grate from the safety of the floor — I do not find a deficiency in either the training or supervision,” the court said in dismissing all the charges against Viterra.

For more information see:

R. v. Viterra Inc., 2016 CarswellSask 583 (Sask. Q.B.).

R. v. Saskatchewan Wheat Pool, 1999 Carswell Sask (Sask. Q.B.).

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