R. v. McCarthy's Roofing Ltd.

R. v. McCarthy's Roofing Ltd.

Acquittals entered on all counts because Crown failed to prove essential elements: McCarthy's was not shown to be a 'constructor' under the OHSA so Counts 1 and 2 fail; section 23.11(1)(b) WHSR governs design/installation/maintenance/inspection and does not apply to dismantling so Count 3 fails; Count 4 fails because no manufacturer (Tractel) specifications or engineer-certified specifications were tendered (Safway documents were supplier materials, not manufacturer specs); although some investigative statements were lost through unacceptable negligence, no prejudice to McCarthy's right to full answer and defence was established, so no stay granted.

Citation
2016 NSPC 52
Parties
Crown: Her Majesty the Queen; Defendant: McCarthy's Roofing Limited
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
13 September 2016
Procedural Posture
Criminal Occupational Health and Safety Act Offences / Trial Decision (provincial Court)
Outcome
Acquitted on all counts (Counts 1–4 dismissed)
Legal Topics
Constructor Definition Under OHSA, Due Diligence Defence, Disclosure and Lost Evidence, Manufacturers' Specifications and Regulatory Application, Statutory Interpretation, Stay of Proceedings
Source Language
English
Occupational Health and Safety Regulatory Compliance Criminal Law Constitutional Law (charter) Constructor Definition Under OHSA Due Diligence Defence Disclosure and Lost Evidence Manufacturers' Specifications and Regulatory Application +2 more

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Parties

Her Majesty the Queen

Crown

McCarthy's Roofing Limited

Defendant

Procedural Posture

Criminal Occupational Health and Safety Act Offences / Trial Decision (provincial Court)

Legal Issues

  1. 1 Whether McCarthy's qualified as a 'constructor' under the OHSA for Counts 1 and 2
  2. 2 Whether Crown proved beyond a reasonable doubt that McCarthy's breached section 15(a)/(c) OHSA and failed to take every reasonable precaution
  3. 3 Whether section 23.11(1)(b) WHSR (CSA Z271-10) applied to dismantling the outrigger (Count 3)

Ratio Decidendi

Acquittals entered on all counts because Crown failed to prove essential elements: McCarthy's was not shown to be a 'constructor' under the OHSA so Counts 1 and 2 fail; section 23.11(1)(b) WHSR governs design/installation/maintenance/inspection and does not apply to dismantling so Count 3 fails; Count 4 fails because no manufacturer (Tractel) specifications or engineer-certified specifications were tendered (Safway documents were supplier materials, not manufacturer specs); although some investigative statements were lost through unacceptable negligence, no prejudice to McCarthy's right to full answer and defence was established, so no stay granted.

Court Disposition

Acquitted on all counts (Counts 1–4 dismissed)

Orders

  • Counts 1, 2, 3 and 4 dismissed (acquittal)
  • No stay of proceedings granted based on lost evidence; findings recorded re unacceptable negligence in preservation of some statements but no remedy required