R. v. Courtnakyle Fisheries Ltd.

R. v. Courtnakyle Fisheries Ltd.

The OHSA applies to the vessel as a workplace; sea urchin divers in this fishery are dependent contractors and therefore deemed employees under OHSA; Courtnakyle Fisheries Ltd., as employer, breached statutory obligations by permitting diving without required secondary air supply and by failing to maintain an adequate cage guard around the propeller (breaches of s.13(1)(a)/s.87(2)/code of practice) and the Crown proved actus reus for those counts; defendants failed to establish due diligence for the secondary air supply and propeller maintenance (but succeeded in justifying non‑use of buoys in strong current); result: corporate conviction on counts relating to uncaged propeller and lack...

Citation
2005 NSPC 69
Parties
Prosecutor: Her Majesty The Queen; Defendant (corporate): Courtnakyle Fisheries Limited; Defendant (individual): Dwayne Elton Thériault
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
25 July 2005
Procedural Posture
Criminal / Trial Judgment (july 25, 2005)
Outcome
Courtnakyle Fisheries Ltd. convicted on counts relating to allowing a diver to dive without required safety equipment (secondary air supply; buoy/line) and for failing to maintain an adequate propeller cage (counts 1 and 4 as charged); Dwayne Elton Thériault not convicted on charges insofar as charged in his...
Legal Topics
Employer Liability, Dependent Contractor Status, Strict Liability Offences, Due Diligence Defence, Code of Practice Enforcement, Workplace Safety Regulations, Diving Safety Requirements, Propeller Guarding
Source Language
English
Occupational Health and Safety Criminal Law Maritime / Fisheries Law Administrative Law Employer Liability Dependent Contractor Status Strict Liability Offences Due Diligence Defence +4 more

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Parties

Her Majesty The Queen

Prosecutor

Courtnakyle Fisheries Limited

Defendant (corporate)

Dwayne Elton Thériault

Defendant (individual)

Procedural Posture

Criminal / Trial Judgment (july 25, 2005)

Legal Issues

  1. 1 Whether the Occupational Health and Safety Act (OHSA) applies to sea urchin divers working from a vessel
  2. 2 Whether divers are employees, independent contractors or dependent contractors for OHSA purposes
  3. 3 Whether the corporate defendant and/or individual defendant committed the actus reus of the charged OHSA offences (uncaged propeller; allowing dive without required safety equipment)

Ratio Decidendi

The OHSA applies to the vessel as a workplace; sea urchin divers in this fishery are dependent contractors and therefore deemed employees under OHSA; Courtnakyle Fisheries Ltd., as employer, breached statutory obligations by permitting diving without required secondary air supply and by failing to maintain an adequate cage guard around the propeller (breaches of s.13(1)(a)/s.87(2)/code of practice) and the Crown proved actus reus for those counts; defendants failed to establish due diligence for the secondary air supply and propeller maintenance (but succeeded in justifying non‑use of buoys in strong current); result: corporate conviction on counts relating to uncaged propeller and lack...

Court Disposition

Courtnakyle Fisheries Ltd. convicted on counts relating to allowing a diver to dive without required safety equipment (secondary air supply; buoy/line) and for failing to maintain an adequate propeller cage (counts 1 and 4 as charged); Dwayne Elton Thériault not convicted on charges insofar as charged in his...

Orders

  • Convict Courtnakyle Fisheries Ltd. of offences contrary to the Occupational Health and Safety Act and Occupational Safety General Regulations as found in counts 1 and 4.
  • Acquit Dwayne Elton Thériault of charges insofar as charged as an employee; no conviction entered against him in that capacity.