Nova Scotia (Occupational Health and Safety) v. DJ Excavation Inc.

Nova Scotia (Occupational Health and Safety) v. DJ Excavation Inc. Court Court of Appeal Date 2026-03-17 Citation 2026 NSCA 24 Docket CA 545342 Judge/Registrar/Adjudicator Farrar, David P.S. (Honourable Justice) (CA); Derrick, Anne S. (Honourable Justice) (CA); Beaton, Carole A. (Honourable Justice) (CA) Document Type Decision Decision Content Nova Scotia Court of Appeal Citation: Nova Scotia (Occupational Health and Safety) v. DJ Excavation Inc., 2026 NSCA 24 Date: 20260317 Docket: CA 545342 Registry: Halifax Between: Director of Occupational Health and Safety Appellant v. DJ Excavation Inc., Nova Scotia Labour Board and the Attorney General of Nova Scotia Respondents Judges: Farrar, Derrick and Beaton, JJ.A. Appeal Heard: January 20, 2026, in Halifax, Nova Scotia Facts: DJ Excavation, a subcontractor, was involved in excavation work near a tower crane at a construction site in Lower Sackville. Concerns arose about the stability of the crane due to the excavation activities. Occupational Health and Safety (OHS) officers inspected the site and issued a Stop Work Order and Compliance Orders, one of which required DJ Excavation to ensure the crane's stability as per Section 166(6) of the Occupational Health and Safety Regulations (paras 1-5). Procedural History: • DJ Excavation Inc. (Re), 2025 NSLB 79: The Labour Board allowed the appeal of the Compliance Order and set it aside (para 10). • DJ Excavation Inc. (Re), 2025 NSLB 83: The Labour Board allowed the appeal of the Administrative Penalty (para 10). Parties’ Submissions: • Appellant: Argued that the Labour Board erred in interpreting Section 166(6) by construing "may" as probability rather than possibility, and that the Board's interpretation was contrary to the purpose of the Occupational Health and Safety Act (paras 13, 17). • Respondent (DJ Excavation): Did not appear or make any representations on this appeal (para 11). Legal Issues: • Should leave to appeal be granted? • Did the Labour Board err in its interpretation of Section 166(6) of the Occupational Safety General Regulations? • Did the Board err by reversing the onus of proof contrary to Section 30.5 of Workplace Health and Safety Regulations? Disposition: • Leave to appeal was granted, but the appeal was dismissed without costs. Reasons: Per Farrar J.A. (Derrick and Beaton JJ.A. concurring): The Court found that the Labour Board did not err in its interpretation of Section 166(6). The Board's decision was based on the evidence presented, which showed that DJ Excavation's activities could not have destabilized the crane. The Board did not reverse the onus of proof but, rather found DJ Excavation had met its burden. The appellant's interpretation of the Board's decision was not supported by its text or the evidence presented. The Labour Board's decision to set aside the Compliance Order was transparent, intelligible, and justified (paras 16-39). This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 40 paragraphs. Nova Scotia Court of Appeal Citation: Nova Scotia (Occupational Health and Safety) v. DJ Excavation Inc., 2026 NSCA 24 Date: 20260317 Docket: CA 545342 Registry: Halifax Between: Director of Occupational Health and Safety Appellant v. DJ Excavation Inc., Nova Scotia Labour Board and the Attorney General of Nova Scotia Respondents Judges: Farrar, Derrick and Beaton, JJ.A. Appeal Heard: January 20, 2026, in Halifax, Nova Scotia Written Release: March 17, 2026 Held: Leave to appeal granted, appeal dismissed without costs, per reasons for judgment of Farrar, J.A.; Derrick and Beaton, JJ.A. concurring. Counsel: Samatha Parris, for the appellant D.J. Day, self-represented respondent, DJ Excavation (not appearing) Kevin Kindred, K.C. for the respondents Nova Scotia Labour Board and the Attorney General of Nova Scotia (not participating) Reasons for judgment: Background [1] DJ Excavation was a subcontractor to a contractor who was building four six story apartment buildings in Lower Sackville. The work site had a tower crane. In April, 2024 a geotechnical engineer evaluated the preparation of the area where the crane would be placed and concluded the bearing surface met the specifications for erecting the crane.[1] [2] Sometime prior to May 8, 2024, the steel reinforcements for the crane base were installed. A structural engineer certified that the reinforcements had been installed in accordance with the structural details and the tower crane base was fit for the purpose and ready to receive the tower crane.[2] [3] On or around November 7, 2024, DJ performed excavation work near the tower crane. [4] At some point before November 13, 2024, the appellant received a report expressing concern about DJ’s excavation close to the crane tower. [5] On November 13, 2024, OHS officers conducted an inspection of the work site. As a result of their inspection, the officers issued a Stop Work Order and five Compliance Orders. Only one of those Compliance Orders (19628601-002) is the subject of this appeal. It required DJ to comply with Section 166(6) of the Occupational Health and Safety Regulations Act, NS Reg 44/99 which provides: 166(6) An employer shall ensure that a utility pole, building or other structure is provided adequate support or removed if the utility pole, building or other structure may become unstable because of excavation or trenching activity. [6] In order to be in compliance with s.166(6), DJ was required to: Ensure a geotechnical engineer assesses the excavation to ensure the tower crane base is adequately supported and identifies measures necessary to prevent destabilization of the material. [7] On November 20, 2024, DJ received a Notice of an Administrative Penalty in the amount of $500 pursuant to Section 31.2 of the Workplace Health and Safety Regulations[3] for contravention of s.166(6). [8] On December 3, 2024, DJ appealed the Compliance Order and the Administrative Penalty to the Labour Board. The appeal was further to Sections 3, 68 and 69 of the Occupational Health and Safety Act:[4] Interpretation 3 In this Act, … (c) “Board” means the Labour Board established under the Labour Board Act; Labour Board 68(1) The Board shall hear all appeals filed under this Act and the Regulations. … Right to appeal and consequences of appeal 69(1) Subject to the regulations and subsection (2), an aggrieved person may appeal an order made by an officer pursuant to this Act or the regulations; … (5) Subject to the regulations, on receipt of a notice of appeal, … the Board shall hold a hearing, either orally or by way of written submissions, that provides any aggrieved persons who have so requested the opportunity to present evidence and make representations, in accordance with the regulations. (6) Subject to the regulations, the Board may, by order, confirm, vary, revoke or suspend the order or decision appealed from or make any order that an officer is empowered to make pursuant to this Act. [9] Julien S. Matte, Vice-Chair of the Board held an oral hearing on March 26, 2025. The Board had before it three engineering reports, photographs of the work site and testimony from OHS Officer Ron Buchanan and the respondent, DJ Day. [10] On June 18, 2025, the Board rendered two decisions with identical reasons. In DJ Excavation Inc. (Re), 2025 NSLB 79, it allowed the appeal of the Compliance Order and set it aside. In DJ Excavation Inc. (Re), 2025 NSLB 83, it allowed the appeal of the Administrative Penalty. The appellant appeals the setting aside of the Compliance Order. It does not appeal setting aside the Administrative Penalty. [11] DJ did not appear or make any representations on this appeal. [12] For the reasons that follow, I would grant leave to appeal and dismiss the appeal. Issues [13] The appellant lists the following issues in its factum: 1. Should leave to appeal be granted? 2. Did the Board err in its interpretation of Section 166(6) of the Occupational Safety General Regulations, by: a. Interpreting the word “may” to mean probability, not possibility. b. Interpreting the section in a manner contrary to the purpose of the Occupational Health and Safety Act? 3. Did the Board err when it reversed the onus of proof, contrary to Section 30.5 of Workplace Health and Safety Regulations? [14] I am satisfied the appellant has raised an arguable issue; leave to appeal is granted. Standard of Review [15] Section 70 of the Occupational Health and Safety Act, SNS 1996, c.7 provides: 70 (1) Subject to subsection (2), the Board has exclusive jurisdiction to determine all questions of (a) law respecting this Act; (b) fact; and (c) mixed law and fact, that arise in any matter before it, and a decision of the Board is final and binding and not open to review except for error of law or jurisdiction. (2) The review of a decision of the Board shall be conducted (a) by the Nova Scotia Court of Appeal, and only with leave of that Court; and (b) with recognition that a panel of the Board is constituted is established, for the purpose of this Act, as an expert body. [Emphasis added] [16] Recently in Gannett v. Halifax Regional Centre for Education,[5] Justice Fichaud undertook a detailed analysis of the standard of review under Section 70[6] and concluded the standard of review was reasonableness: [4] Section 70 of the Act authorizes the Court of Appeal to “review” a decision of the Labour Board. Ms. Gannett filed a Notice of Appeal (Tribunal) to this Court. She challenges each of the Board’s three bases for its ruling. The Act’s directive that this Court conduct a “review”, instead of an “appeal”, connotes a standard of reasonableness. In this Court, the issue is whether the Board’s reasoning or conclusion is unreasonable under Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Analysis Did the Labour Board err in its interpretation of Section 166(6) of the Regulations? [17] The appellant’s argument on this point is summarized in its factum as follows: 53. The Appellant submits that the Board erred in its interpretation of Section 166(6) of the Occupational Safety General Regulations. Specifically, the Board construed the term “may” as denoting probability rather than possibility, and failed to undertake a purposive analysis of the provision. This led to an unduly narrow interpretation that frustrates, rather than advances, the protective purpose of Section 166(6). [18] For ease of reference, I will again set out section 166(6) of the Regulations: 166(6) An employer shall ensure that a utility pole, building or other structure is provided adequate support or removed if the utility pole, building or other structure may become unstable because of excavation or trenching activity. [19] The Board reviewed the three engineering reports. The first report dated April 24, 2024, referred to earlier, evaluated the excavation and preparation of the area where the crane would be placed concluding that the bearing surface met the specifications. [20] The second report dated May 8, 2024, also referred to earlier, reviewed the design of the crane base and concluded “the crane base is fit for purpose and ready to receive the tower crane”. [21] The third report, in response to the Compliance Order, was dated November 14, 2024[7] and provided: At the time of our inspection, a stop work order was in place issued by an Occupational Health and Safety Officer. To permit foundation construction for building 4, excavation has been taken to elevations lower than the adjacent crane footing. The elevation difference between the underside of the crane footing and the excavation for building 4 is approximately 15 feet. Lateral separation from the edge of the crane footing and the toe of the slope is in the order of 17 feet. Based on our site inspection and evaluation, we are of the opinion that the excavation for building 4 has not negatively impacted the bearing support soils for the crane footing. [Emphasis added] [22] After reviewing the engineering reports, the photographs, and the evidence presented by the parties at the hearing, the Board made the following findings: [9] As argued by the Appellant, the approval of the crane base sitting on the approved soil did not depend on the crane being backfilled. Pictures of the construction of the crane base show that the crane base was not surrounded by dirt. Further, the Appellant testified that the dirt was backfilled around the crane because trucks were driving near by, but that the dirt was not compacted. A picture of the relevant excavation shows that dirt appears to be loosely tumbling off the street side of the crane base. Ext. 2, Tab 2 [10] Despite the stop order and eventual issuance of the Compliance order, the November 14, 2024, engineer report generated in response makes no mention of dirt surrounding the crane providing support for the crane. Further, the May 8, 2024 engineering report approving the base of the crane makes no mention of backfilling to add support to the crane base. [11] Section 166 is not specific to cranes. As testified to by Officer Buchanan and agreed to by the Appellant, cranes are designed to absorb forces and channel them downward through the base. While lateral forces can be exerted on a crane, excavation near a crane, if done properly, may not have the same level of risk as another structure such as a utility pole. Each case has to be evaluated to determine whether adequate support exists rather than just concluding that any excavation “may” create a risk. [12] The section’s focus is on adequate support and what the adequate support may be for a crane, may not be the same as a utility pole or a wall. A utility pole may only rely on the dirt that surrounds it to give it stability while a crane is anchored to a cement base on top of a solid foundation. Adequate support is defined by the excavation at issue, and not just the removal of dirt. [13] The Director says that the adequate support for the crane was dirt surrounding its base and that by removing the dirt, the Appellant may have made the crane unstable. The engineer’s report dated November 14, 2024, made after the issuance of the Compliance Order confirms the Appellant’s testimony that the standard practice when excavating next to a structure is to keep the slope at 1:1. [14] Further and as noted by the Appellant, the engineer’s report dated April 24, 2024, approving the soil base as well as the May 8, 2024 engineers report approving the concrete crane base, does not mention a requirement to backfill around the crane to provide stability. There is no evidence that the loose dirt surrounding the crane’s base plays a part in the crane’s stability. [15] The Director argues that the removal of loose soils around the crane base at or better than a 1:1 slope may have made the structure unstable. Therefore, the only evidence before the Officer on November 7, 2024, was an excavation beside a crane on a 1:1 slope. There was no evidence tendered that suggests that there was “inadequate support” of the crane, which was affixed atop an approved concrete base, and atop approved soil conditions as per the engineers’ reports. [Emphasis added] [23] The Board then concluded: [16] The Board agrees that the Director does not have to prove that the actions of the Appellant actually made the crane unstable, only that it “may” have made the crane unstable. The fact that the engineer’s report of November 14, 2024, confirms that it did not make the crane unstable does not make the Appellant immune from being subject to the Compliance Order. However, to conclude that there was inadequate support created by the excavation such that there may have been instability, there must be some evidence. [17] A breach of s. 166(6) must be grounded in evidence, not simply on any possibility, no matter how unlikely, that a structure may become unstable. The use of the term “may” does not equate to a “feeling” that something could have been done differently. Given that the Appellant excavated a proper 1:1 or greater slope, with the knowledge he had, the bare allegation that what he did “may” have caused a problem, is not enough to trigger liability. [Emphasis added] [24] It addressed the issue put before it as outlined in the director’s pre-hearing submissions:[8] Whether DJ Excavation was compliant with its obligations pursuant to Section 166(6) of the General Regulations made under the Occupational Health and Safety Act. [25] The Board determined, on the evidence it had before it as an “expert body”[9] that DJ had complied with its obligations. [26] The appellant argues that the Board’s interpretation of the term “may” requires a threshold of probability rather than a mere possibility. With respect, the appellant is reading too much into the Board’s decision. It expressly stated DJ could still be liable even if its conduct did not cause the crane to become unstable. That does not connote a probability but rather a mere possibility. In these circumstances there was no evidence the conduct of DJ could possibly have made the tower crane unstable. The evidence to which the Board refers supports this conclusion. [27] The appellant also argues that the Board’s decision reverses the onus of proof by requiring the director to adduce evidence to show the actions of DJ probably made the tower crane base unstable. [28] Again, with respect, I disagree. [29] The Board makes clear it is not requiring the director to adduce evidence to show that the actions of DJ “probably” made the tower crane base unstable. [30] To the contrary, rather than reverse the onus of proof, it applied it. It found DJ’s evidence satisfied its burden to show it had complied with s. 166(6). There was no evidence to support the conclusion the back-filled dirt was providing any form of support to the tower crane base.[10] DJ’s excavation activities would not have made it unstable. [31] The Board did not err in its interpretation of Section 166(6), it did what it was required to do—interpret the section based on the evidence presented. [32] I would dismiss this ground of appeal. Interpreting the provisions narrowly and contrary to the purpose and scheme of the Occupational Health and Safety Act. [33] Again the position of the appellant is set out in their factum. 87. The Board’s narrow interpretation of Section 166(6) fails to uphold this principle. Rather than recognizing the provision’s preventative purpose, to require employers to take additional steps when excavation activity may compromise the stability of a structure, the Board adopted a restrictive reading that hinges on the existence of probable instability. This approach disregards the complexity of determining structural stability, which often involves multiple variables and advanced engineering analysis. [34] The appellant’s position on this ground of appeal cannot succeed for the same reasons set out above. [35] The Board did not require that the actions of DJ resulted in a probability that the crane would be unstable. [36] For ease of reference, I repeat the Board’s reasons. [16] The Board agrees that the Director does not have to prove that the actions of the Appellant actually made the crane unstable, only that it “may” have made the crane unstable. The fact that the engineer’s report of November 14, 2024, confirms that it did not make the crane unstable does not make the Appellant immune from being subject to the Compliance Order. However, to conclude that there was inadequate support created by the excavation such that there may have been instability, there must be some evidence. [Emphasis added] [37] This paragraph cannot be interpreted as requiring the Director to prove the instability to a probability standard. The Board’s reference to “some evidence” falls far below proof of probability. [38] I would dismiss this ground of appeal. Conclusion [39] The appellant’s interpretation of the decision of the Board is not supported by the text of the decision nor the evidence the Board had before it. The Labor Board’s setting aside of the Compliance Order is transparent, intelligible and justified, as those terms are defined in Minister of Citizenship and Immigration v. Vavilov.[11] I would dismiss the appeal. [40] DJ did not make any representations on the appeal. As a result there will be no costs award. Farrar, J.A. Concurred in: Derrick, J.A. Beaton, J.A. [1] Report of Englobe Corp. dated April 24, 2024. [2] Report of Sani Engineering dated May 8, 2024. [3] NS Reg. 52/2013. [4] SNS 1996 c 7. [5] 2026 NSCA 16. [6] Gannett at para. 75-92. [7] Report of Englobe Corp. [8] Prehearing submissions dated March 25, 2025. [9] S.70(2)(b) of the Act. [10] Labour Board decision, para. 18. [11] 2019 SCC 65.