R. v. Vertical Transport Elevator Consulting Ltd.

R. v. Vertical Transport Elevator Consulting Ltd. Court Provincial Court Date 2016-05-10 Citation 2016 NSPC 28 Docket 2834152-55 Judge/Registrar/Adjudicator Derrick, Anne S. (Honourable Judge) (PC) Document Type Decision Decision Content IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Vertical Transport Elevator Consulting Ltd., 2016 NSPC 28 Date: May 10, 2016 Docket: 2834152, 2834153, 2834154, 2834155 Registry: Halifax Between: Her Majesty the Queen v. Vertical Transport Elevator Consulting Limited TRIAL DECISION Judge: The Honourable Judge Anne S. Derrick Heard: April 4, 5, 6, 7 and 14, 2016 Decision: May 10, 2016 Charges: section 74(1)(a) of the Occupational Health and Safety Act, R.S.N.S. 1996, C. 7 x 4 Counsel: Alex Keaveny, for the Crown Dennis James, for the Defendant By the Court: Introduction [1] On March 18 and 19, 2013, two construction elevators, Hoists #1 and #2, were being installed at a construction site on Brunswick Street in Halifax. The installation method being used was not in accordance with the installation manual for the hoists. During the installation of Hoist #2 on March 19, the drive unit, including two motors and their assemblies, fell while being lifted into position by a crane. A scaffold foreman, Joachim Antonio, was trapped underneath the drive unit and sustained a broken left femur and severe lacerations to his upper right leg. (Exhibit 1, Agreed Statement of Facts) [2] Safway Services Canada (“Safway”) was Mr. Antonio’s employer. Safway had contracted with Vertical Transport Elevator Consulting Ltd. (“VTEC”) to provide certain services associated with the construction hoists. VTEC is a Nova Scotia Limited Company engaged in the provision of licensed registered Class A elevator contractor services. (Exhibit 1, Agreed Statement of Facts) The Crown alleges that VTEC assumed responsibility for supervision of the hoist installations, supervision that was inadequate. VTEC says the services it was rendering for Safway related to code compliance inspection only and did not include any involvement in the installation process. VTEC denies any responsibility for what happened to Mr. Antonio. The Charge against Vertical Transport Elevator Consulting Ltd. [3] VTEC is charged as “a contractor”, for: Failing to take every precaution that is reasonable in the circumstances to ensure the health and safety of persons at or near the workplace, contrary to section 14(a) of the Occupational Health and Safety Act, thereby committing an offence under section 74(1)(a) of the Occupational Health and Safety Act. The Class A Elevator Installation Mechanic - A Threshold Issue [4] On March 19 when Mr. Antonio was injured during the installation of Hoist #2 there was no Class A mechanic at the Brunswick Street construction site. The Crown says VTEC was the Class A that should have been there supervising. The Defence says the Class A supervision of the hoist installations was Safway’s exclusive responsibility. [5] Crown and Defence agree that determining the scope of VTEC’s responsibilities under its contract to Safway is a threshold issue: the Crown’s case against VTEC fails unless there is proof beyond a reasonable doubt that the company was under contract with Safway to supervise the installation of the construction elevators. The Requirement of a Class A Mechanic to Supervise the Hoist Installations [6] The installation of construction elevators must either be undertaken by a Class A mechanic or the Class A mechanic must supervise any mechanic in training who is doing the installation. (Exhibit 1, Agreed Statement of Facts, paragraph 8) [7] Safway was the contractor installing the hoists at the Brunswick Street construction site and, in accordance with the requirements of the provincial Elevator and Lifts Act and regulations, had been issued a Class A contractor registration in January 2013. Its registration required it to have in its employ a Class A mechanic. [8] Safway’s application for registration dated January 17, 2013 named its employee, Alan Lockyer, as its Class A mechanic. (Exhibit 2, Tab 18) Bill Phillips, the branch manager for Safway and a Crown witness, recalled that dire personal circumstances disrupted Safway’s original plan to have Mr. Lockyer as the on-site Class A for the Brunswick Street hoist installations. Although Mr. Lockyer had been living in Nova Scotia, sometime in early 2013 he relocated to Toronto to deal with a family emergency. [9] The sudden departure of Mr. Lockyer left Safway without a Class A mechanic for the imminent hoist installation at the Brunswick Street construction site. Mr. Phillips testified that he figured he would need a Class A “if Alan couldn’t make it back” so he contacted VTEC. He says it was explained to VTEC that Safway needed someone on site. [10] VTEC had a Class A mechanic - its owner, Fred Farrugia. Mr. Farrugia’s expertise was in the field of elevator inspection. From 2000 to 2012 before setting up VTEC, he had been an elevator inspection specialist in the Elevator and Lifts Division of the Department of Labour. He testified that he had no experience with the installation of hoists. He says he informed Mr. Phillips of this. Mr. Phillips does not remember a conversation where this occurred but acknowledged it is possible Mr. Farrugia told him he did not have installation experience. [11] Mr. Farrugia set about looking for a Class A mechanic for Safway to contract with for the hoist installations. Finding Safway a Class A Mechanic to Supervise the Hoist Installations [12] Mr. Farrugia testified that filling Safway’s request for help was not going to be easy because there are not many Class A mechanics doing this work. He says he told Safway this and advised them that he was going to “call around to get someone to assist them with the installation.” [13] An email dated February 28, 2013 confirms that he did so. In the email to Bill Phillips, Mr. Farrugia said: I have spoke to a Class A contractor in regards to assisting in the installation of your two personnel hoists. I will provide more details on the weekend and send you a written proposal for the installation work…(Exhibit 6, page 2) [14] Mr. Phillips testified he understood from this email that VTEC would not be doing the supervision of the hoist installations under its contract with Safway. [15] The Class A mechanic Mr. Farrugia called about Safway’s hoist installations was Garry Scott. He called Mr. Scott because “he was really the only one who installed them.” Mr. Scott, who holds a Class A elevator mechanic certification, had his own company called Scott Elevator Manufacturing Ltd. [16] Mr. Farrugia testified that Mr. Scott agreed to be the Class A for the Safway job. This accords with Mr. Scott’s recollection. He testified that Mr. Farrugia wanted him involved in the Brunswick Street hoist installations because Mr. Farrugia did not have the necessary experience. As Mr. Scott put it: “I had that experience with personnel/material hoists.” [17] It was Mr. Scott’s evidence that he had done “numerous hoists in the city for other companies and that’s what I was going to do.” He understood that as the Class A for the installation he would be supervising “to see that things are done properly.” [18] Mr. Scott recalls visiting the Brunswick Street construction site once with Mr. Farrugia and discussing the job with him “on many occasions.” The site visit was to see where the hoists, which had not yet arrived, were going to be installed. The discussions were about providing the assistance that Safway required to get the hoists installed. [19] On March 1, 2013 Mr. Farrugia emailed Mr. Scott (Exhibit 6, page 3) the two manuals for the hoists – the Installation Manual (Exhibit 2, Tab 5) and the Operation & Maintenance Manual (Exhibit 2, Tab 6) although Mr. Scott does not recall receiving them. Mr. Farrugia had obtained the manuals from Mr. Phillips. (Exhibit 6, page 3, email dated February 28, 2013 from Bill Phillips to Fred Farrugia) [20] In short order, Mr. Farrugia prepared a draft contract between Scott Elevator Manufacturing Limited and Safway (Exhibit 6, pages 7 – 10), the “Scott Elevator Manufacturing/Safway” contract, and sent it by email on March 4 for Mr. Scott’s review. (Exhibit 6, page 11) They talked on the telephone. Mr. Farrugia then sent the contract to Mr. Phillips for his comments. The March 4 email Mr. Farrugia sent to Mr. Phillips reads: Please see the attached pdf document installation agreement in relation to the Class A elevator contractor Garry Scott and Safway. After your review could you provide your feedback and if you would like to meet tomorrow maybe we can arrange a time. (Exhibit 6, page 6) The “Scott Elevator Manufacturing/Safway” Contract for On-site Hoist Installation Assistance [21] The “Scott Elevator Manufacturing/Safway” contract prepared by Mr. Farrugia contemplated that, for the two Brunswick Street hoists, Mr. Scott would provide as a Class A elevator mechanic, “…on-site installation assistance” to Safway’s “hoist/manufacture trained/certified installation personnel.” (Exhibit 6, page 14) Mr. Farrugia testified that he drafted this language because Safway was going to hire Mr. Scott to do the on-site installation assistance at the Brunswick Street site as an elevator mechanic. Safway would be responsible for all the personnel, including certified personnel, training, tools, labour and equipment for the hoist installations. [22] Mr. Farrugia recalls sending the contract out by email the next day, March 5, for Mr. Scott and Mr. Phillips to sign. His March 5 email to Garry Scott copied to Bill Phillips, said: Can you print the attached document, please sign it and fax document to Bill Phillips @ 902-468-9237. Also Bill when you receive the fax from Garry can you please sign it and scan document and email back to Garry as he is having a technical problem with receiving faxes at this time. If you have any questions please let me know. (Exhibit 6, page 12) [23] On March 7, Mr. Phillips emailed the contract with his signature on it to Mr. Scott and Mr. Farrugia. (Exhibit 6, page 13) Mr. Scott had not yet signed it. There is no evidence of the contract ever being signed by Mr. Scott. Mr. Scott recalls no dealings with Mr. Phillips although the name is familiar to him. [24] Although Mr. Scott does not now recall receiving the hoist manuals or the contract with Safway, he confirmed that the email address used by Mr. Farrugia and Mr. Phillips was correct. He acknowledged that his computer skills were rudimentary then as they still are now. Ongoing Preparations for the Hoist Installation [25] A March 8th email from Mr. Phillips to Mr. Farrugia asking if he had heard from Mr. Scott indicates there was still no fully signed “Scott Elevator Manufacturing/Safway” contract. (Exhibit 6, page 18) Mr. Phillips copied his email to Mr. Scott and Wilfred Bona, the Safway scaffold supervisor for the Brunswick Street project, and Scott Himmelman, another Safway employee. [26] Later in the day on March 8th, Mr. Phillips emailed Mr. Farrugia and Mr. Scott with the news that the Brunswick Street construction site was too congested for the hoist installations “next week.” He advised that he would be trying to get “gear” for the installation shipped to the site “next week to claim the space we require to safely do the install.” His email was copied to Wilfred Bona and Scott Himmelman. (Exhibit 6, page 19) [27] An email to Mr. Farrugia from Mr. Phillips on March 13 indicated the hoist installations now had a fixed start date – March 18. Mr. Phillips had “two guys coming in from Toronto…” (Exhibit 6, page 20) Mr. Phillips wanted to know was Mr. Scott “OK with next week?” [28] Mr. Farrugia followed up this inquiry and responded a little over an hour later. His email to Mr. Phillips said: I have spoken with Gary today and he is available for Monday March 18th. Also he has his fax/printer up and running now so he should be able to send a signed copy of the agreement to you…(Exhibit 6, page 21) [29] Mr. Phillips testified that he understood both Garry Scott and Mr. Farrugia would be at the Brunswick Street site for the hoist installations. He says he believed Mr. Farrugia was being retained for “code compliance.” He assumed that between these two Class A’s at the site, Mr. Scott and VTEC, “they could pretty much do anything in relation to an elevator.” The March 13th Meeting Between Mr. Farrugia and Mr. Phillips [30] In his March 13th email to Mr. Phillips Mr. Farrugia indicated he would like to meet (Exhibit 6, page 21) and arrangements were made. (Exhibit 6, pages 22 and 23) Mr. Phillips and Mr. Farrugia each testified about the March 13 meeting. [31] The meeting has significance because Mr. Farrugia at least recalls it including a discussion about Gary Scott. Mr. Farrugia’s recollection provides an explanation for why Gary Scott was not ultimately involved in the hoist installations on March 18 and 19 despite everything that had indicated he would be. [32] Mr. Farrugia offered a more detailed account than Mr. Phillips of what was discussed at their March 13 meeting. He testified that Mr. Phillips wanted to cancel the arrangements for Mr. Scott because Alan Lockyer was going to supervise the hoist installation. It is Mr. Farrugia’s evidence that he told Mr. Phillips he would have to call Mr. Scott “to cancel him because that is what Mr. Phillips wanted.” [33] Mr. Farrugia testified that otherwise the March 13 meeting with Mr. Phillips was about Mr. Farrugia doing the compliance checks on the hoists. Mr. Farrugia says he was to advise the Class A “of anything that didn’t look code complaint…and he’d get it rectified.” Mr. Farrugia told Mr. Phillips he would look at Safway’s operator manuals and ensure they were compliant with the requirements in Nova Scotia. According to Mr. Farrugia there was no discussion that he was going to supervise the installations. [34] Mr. Phillips had very little recollection about the specifics of the March 13 meeting. He testified that he doesn’t remember why Mr. Scott was dropped from the hoist installations. He does not recall telling Mr. Farrugia that Mr. Scott would not be required after all because Mr. Lockyer was going to supervise by telephone the Safway employees coming from Toronto. He does not recall the March 13 meeting concluding with a confirmation that Mr. Farrugia would being doing code compliance and Safway would deal with the supervision of the hoist installations through a revised strategy that did not involve Garry Scott. Garry Scott is not Contracted by Safway for the Hoist Installations [35] Mr. Scott cannot clearly remember now why he was ultimately not retained for the Brunswick Street hoist installations. He testified to having a vague recollection that he may have been unacceptable to Safway because the companies involved in the construction were all unionized and Mr. Scott’s company is not. [36] In any event, after March 13 there was no further mention of Mr. Scott. Mr. Farrugia recalls that he called Mr. Scott and advised him that Safway did not require his services. It was his impression that Mr. Scott was quite happy with this news. The VTEC/Safway Contract [37] Mr. Farrugia testified that Mr. Phillips wanted him to take care of “the compliance end” of the hoist installation. He says Mr. Phillips didn’t want any “hiccups. He wanted turnkey with the Department of Labour.” Mr. Phillips was familiar with Mr. Farrugia’s prior experience as a compliance inspector and knew that he had the qualifications, as a Class A elevator mechanic, to inspect construction hoists for compliance with provincial code requirements. [38] As I noted, Mr. Farrugia testified that at the March 13 meeting with Bill Phillips they discussed Mr. Farrugia examining Safway’s operator manuals for compliance. On March 14, Mr. Farrugia sent Mr. Phillips an email about the materials, saying: “Just a reminder, if you have powerpoint/material for operator training please forward along.” (Exhibit 6, page 34) [39] Mr. Farrugia drew up a contract to be signed between VTEC and Safway, the “VTEC/Safway” contract. Its effective date was shown as March 18th, 2013. Mr. Farrugia signed it on March 14 and emailed it to Mr. Phillips. (Exhibit 6, pages 27 and 31) Subsequently signed by Bill Phillips it provides as follows under the heading, “Contractor Services Provided”: The Contractor [this being VTEC] agrees to provide on-site Class A Certificate of Competency holder during and up to the “Total Completion” phase. The agreement includes two (2) Safway personnel hoists (Alimak-Champion) located at 1960 Brunswick St. Halifax, N.S. The aforementioned elevating devices are designated as Nova Scotia Installation Number(s) 4601 and 4602. The Contractor’s services shall be deemed “Total Completion” at the point the hoists are erected and the local Elevating Device Authority (Elevators and Lifts Division) has completed the hoist’s initial inspections. (Exhibit 2, Tab 4) [40] The wording for the responsibilities of the contractor in the “VTEC/Safway” contract is different from the wording in the “Scott Elevator Manufacturing/Safway” contract. Only the “Scott Elevator Manufacturing/Safway” contract talks about “on-site installation assistance” by a Class A elevator mechanic. This language is absent from the “VTEC/Safway” contract. Mr. Phillips testified on cross-examination by Mr. James that he did not question Mr. Farrugia about the wording in the “VTEC/Safway” contract. [41] It was Mr. Farrugia’s evidence that when he sent the “VTEC/Safway” contract to Mr. Phillips he understood that Alan Lockyer would be supervising the installations, having been told that by Mr. Phillips at their March 13 meeting. [42] Mr. Farrugia testified that the “VTEC/Safway” contract provided for his compliance inspection services. That, he says, “is what I’m specialized in.” [43] Mr. Phillips advised Mr. Farrugia by email on March 15 that the site orientation was scheduled for Monday March 18 at 8 a.m. (Exhibit 6, page 32) Mr. Farrugia confirmed he would be there. (Exhibit 6, page 33) The Hoist Installations on March 18th and 19th [44] Bill Phillips’ reference in his March 13 email to Mr. Farrugia of “two guys coming from Toronto” for the hoist installations was a reference to Chris Judge and Michael Poznanski. Chris Judge had a training certificate to become a Class B licensed mechanic and was an EDMT, an Elevating Device Mechanic in Training, a designation that he believed was applicable for jobs he might do outside of Ontario. Michael Poznanski was a third year ironworker apprentice. The Brunswick Street job was the first time Mr. Judge and Mr. Poznanski had worked in Nova Scotia. [45] At the time of his arrival in Halifax on March 18, Mr. Judge had only been working for Safway for a few weeks. He was “still in a very instructional mode with hoists”. He had worked very closely with Alan Lockyer doing, by his estimation, eight to eleven jobs, all in the city of Toronto. [46] Chris Judge had been told by Alan Lockyer that he would be doing the Brunswick Street installations under the direct supervision of a Class A mechanic. But he had no discussions with anyone else from Safway to this effect. Mr. Judge had had no contact with Bill Phillips prior to March 18 and 19 and testified that it was not clear to him who Safway’s project coordinator was at the site. [47] Mr. Judge testified that he recognized the name Garry Scott and said he believed it was in the context of the hoist installation job that he heard it. He also heard “there was a change made” which is consistent with the decision by Safway, for whatever reason, not to hire Mr. Scott to supervise the installation of the hoists. [48] Garry Scott was not present for the hoist installations on March 18 and 19. Although Mr. Phillips testified that he believes he expected both Mr. Scott and Mr. Farrugia to be at the Brunswick Street site, there is no evidence that anyone at Safway, including Mr. Phillips, raised concerns or made inquiries about Mr. Scott’s absence. There is no evidence to indicate that on March 18 and 19 Safway had any outstanding expectations of receiving Mr. Scott’s signature on the “Scott Elevator Manufacturing/Safway” contract. Mr. Scott never tendered an invoice. All this is consistent with Mr. Farrugia’s evidence that Mr. Scott was dropped from the hoist installation plan before March 18. [49] The evidence establishes that Fred Farrugia was the only Class A mechanic at the Brunswick Street construction site on March 18 and 19. It appears that several Safway employees at the Brunswick Street site assumed that Mr. Farrugia was the Class A mechanic on site for the hoist installations. None of these employees had any involvement in the arrangements for the installations. Nor had they played any role in the arrangements with VTEC. [50] Wilfred Bona, the scaffolding supervisor, recalls meeting a Class A at the site at some point and “it was someone named Fred”. That must have been Mr. Farrugia. Mr. Bona testified that he knew there were two men coming in from Ontario for the hoist installation and that a “local person” would be the Class A. He says he was told there would be “one Class A.” Mr. Bona may have believed that Mr. Farrugia was the Class A he had been told would be on site. [51] Mr. Bona testified that he was “not involved in the elevator stuff” so the status and role of any Class A mechanic at the site did not concern him. [52] Scott Himmelman, another Safway employee, had been introduced to Mr. Farrugia by Bill Phillips. He next saw him at the construction site on March 19. He testified that he had had no dealings with Mr. Farrugia and no involvement in what VTEC was expected to do at the site. He was not present when Mr. Farrugia told Mr. Phillips that he would not be providing on-site supervision of the hoist installations. [53] Chris Judge assumed Mr. Farrugia was the Class A for the hoist installations. He testified that he had one telephone conversation with Alan Lockyer on the morning of Monday, March 18 in which he expressed his concern that Mr. Farrugia was not around at the installation site. He says he expected to have someone “breathing down [his] neck.” However he never spoke to Mr. Farrugia about his concerns or asked him whether he should have been on site for the installations. [54] Mr. Phillips testified he never told Chris Judge that if VTEC was not on site they should not carry on their installation work. Does the Evidence Establish Beyond a Reasonable Doubt that VTEC Took On the Responsibility of Supervising the Installation of the Hoists? [55] This is the critical question in this trial. What the Crown must prove beyond a reasonable doubt is what VTEC’s actual role was on March 18 and 19, 2013. VTEC is only accountable to the extent of its responsibilities. (R. v. Meridian Construction Inc., [2004] N.S.J. No. 418, paragraph 17(P.C.)) [56] I will now look at the Crown’s submissions on the evidence and then analyze the evidence to determine what it establishes and whether it supports the inferences the Crown is advancing. [57] The Crown submits the following is evidence that VTEC’s principal, Mr. Farrugia, assumed responsibility for supervising the installation of the two Safway hoists: • Mr. Farrugia was not as inexperienced as he claims to have been. He was qualified as a Class A elevator mechanic and he had the manuals for the hoists. The Crown also points to Mr. Farrugia’s emails to Bill Phillips of May 31, 2012 (Exhibit 2, Tab 3) and January 2, 2013. (Exhibit 6, page 1) These emails include statements such as: “I have been involved with the installation/inspection and licencing of personnel/material hoists in Nova Scotia…The hoist installation and licencing transition will be made uneventful as your company emerges into the Atlantic market.” (May 31, 2012 email) and “I will ensure all necessary documents are in order and assist with all aspects of Install and Licensing/Pre-Inspection…I am well versed in dealing with these types of hoist installations…” (January 2, 2013 email) • Mr. Farrugia’s code compliance work could not have taken the 40 hours he billed Safway for on March 19. (Exhibit 2, Tab 14) Within that 40 hours was ample time for Mr. Farrugia to have also acted in a supervisory capacity for the hoist installations; • Chris Judge understood he was to be supervised by a Class A mechanic. He was not told that Alan Lockyer would be the Class A supervising the installation of the hoists and Mr. Lockyer made no mention of this being his role when Mr. Judge called him on the morning of March 18; • Mr. Farrugia was introduced to Chris Judge as a Class A. Mr. Judge explained to Mr. Farrugia what he would be doing to install the hoists. The Crown says this is consistent with Mr. Farrugia being responsible for supervising the installations – why else would he be informed about the installation process?; • Chris Judge’s evidence indicates that Mr. Farrugia acted in ways that were consistent with being the installation supervisor. According to Mr. Judge, Mr. Farrugia checked in with him periodically, he gave Mr. Judge his phone number in case Mr. Judge needed to talk to him, he asked Mr. Judge how he was making out and if he needed anything, and he told Mr. Judge when he was leaving the site at the end of the day; • It cannot be mere coincidence that on March 13, 2013 Garry Scott was dropped as the Class A for the Brunswick Street hoists and on March 14 VTEC sent Safway its contract dated March 18. The Crown says if VTEC was just providing code compliance services why wasn’t its contract sent to Safway earlier? • The “VTEC/Safway” contract mentioned a Class B mechanic. A Class B mechanic is not required for code compliance. A Class B mechanic is needed for installation; • The “VTEC/Safway” contract requires VTEC to be involved up to Total Completion. According to the Crown, Total Completion is consistent with involvement in the installation; • Many of the services referenced in an email dated April 16, 2013 from Mr. Farrugia to Bill Phillips (Exhibit 11) cannot reasonably be said to represent services provided on March 18 and 19 as Mr. Farrugia has claimed. The Crown says they amount to nothing more than advice. [58] The Crown theory is that VTEC’s only role up to March 13 was to arrange for Garry Scott’s involvement. When the relationship VTEC was organizing between Safway and Mr. Scott collapsed, VTEC stepped into the hoist installation supervisory role so as not to lose Safway’s business on the project. Two Class A’s were not required. One Class A could provide both the installation and the code compliance services. [59] The Crown says I can infer that the loss of Garry Scott from the project was compensated for by Mr. Farrugia, with his Class A credentials, stepping into the role that Mr. Scott was to have occupied. [60] It remains a mystery why Garry Scott’s involvement did not materialize. And I have no evidence to explain why neither Chris Judge nor Alan Lockyer knew what Mr. Farrugia says he was told by Mr. Phillips - that Mr. Lockyer was to be the Class A supervising the hoist installations remotely. The Crown’s theory could explain what happened: that once Mr. Scott was no longer being engaged for the hoist installations and with five days to go before the work was to start, VTEC stepped in as the Class A to do both installation supervision and code compliance. It is possible that is what happened. But “possible” does not amount to proof beyond a reasonable doubt. [61] Proof beyond a reasonable doubt has to be made out on the evidence. There is no evidence from Bill Phillips, the only Crown witness involved in arrangements being made for a Class A mechanic for the installations, that he decided to abandon the plan to engage Garry Scott for whatever reason and then agreed that VTEC would occupy that role. And while Mr. Phillips could not recall why Garry Scott was ultimately not retained, he did not contradict Mr. Farrugia’s evidence that Safway had decided to have Alan Lockyer supervise the installations. He did not contradict Mr. Farrugia’s evidence that he lacked hoist installation experience and that VTEC was retained to do the code compliance and not hoist installation. [62] VTEC’s efforts to secure Mr. Scott’s involvement in the hoist installations is consistent with Mr. Farrugia’s evidence that he did not have this expertise. It is implausible that Mr. Farrugia, having gone to such lengths to arrange a contract between Scott Elevator Manufacturing Limited and Safway would suddenly take on a role he had said he did not have the expertise for. [63] Had Mr. Farrugia agreed to step into the supervisory role I would expect there to have been a strong reaction by Safway following Mr. Antonio’s accident. It is reasonable to infer that Safway would have been highly critical of VTEC had it relied on VTEC to supervise the installation. I would expect to see evidence that Safway attributed some blame to VTEC for what happened. There is no such evidence. Safway continued to utilize VTEC following the accident. (Exhibit 12, Invoice for Hoist(s) Consulting Services – April 15, 24, 25, 29 – May 1, 2, 3, 6) Mr. Phillips gave no indication of any dissatisfaction with VTEC’s services and no issue was raised about VTEC’s invoices. Indeed Mr. Phillips testified there were “no hard feelings” toward VTEC after the accident and said that he thought Mr. Farrugia was “very knowledgeable.” [64] And while the Crown has argued that VTEC’s code compliance role cannot possibly have taken 40 hours during the week of March 18 as claimed in VTEC’s invoice (Exhibit 2, Tab 14), no evidence has been produced to contradict Mr. Farrugia that his services were for code compliance and nothing else. There is no evidence that refutes what he says he did. [65] Responsibility cannot be assigned to VTEC on the basis of what others at the site assumed about Mr. Farrugia’s role there. Responsibility cannot be assigned to VTEC for supervision merely on the basis of what Mr. Farrugia did - learning from Mr. Judge what the installation steps would be, asking Mr. Judge how he was making out and if he needed anything, giving Mr. Judge his phone number, telling Mr. Judge when he was leaving the site at the end of the day – when Mr. Farrugia has given uncontradicted evidence that he was not acting in a supervisory capacity. I do not find there is any basis for disbelieving him. [66] Mr. Farrugia says that whatever others may have assumed about his role at the Brunswick Street construction site, he did not conduct himself as though he was responsible for supervising the hoist installations. He testified that he told Mr. Judge he was at the site to do code compliance and explained to him that he was there to make sure the hoists would pass the compliance inspection that would eventually occur. He left the site before 6 p.m. each day while the hoist installations were still underway. His intention to do so is evidenced by his parking receipts for March 18 and 19 which were printed with an expiry time of 6 p.m. (Exhibit 2, Tab 15) Mr. Farrugia’s cell phone records confirm that he called Mr. Phillips’ cell at 5 p.m. on March 18 which is when he says he advised Mr. Phillips he would be leaving for the day. (Exhibit 9) Neither Mr. Phillips nor Mr. Judge raised any concerns about Mr. Farrugia’s departure from the site while the installation crew was still at work. [67] I note as well that Mr. Judge did not involve Mr. Farrugia in the timing of the installations nor did he seek him out to be involved in how the installations should proceed. [68] Mr. Farrugia was unwavering in his evidence that he was at the Brunswick Street construction site solely to conduct compliance checks on the hoists. He said: “I was Safway’s certificate holder for Class A but only for code compliance.” He testified in detail to the tasks he undertook to assess code compliance. When asked on cross-examination about the fact that his interview with the Department of Labour on March 28, 2013 did not contain as much detail about his activities at the site as he had given in his trial testimony he said it was because the Department of Labour investigators did not ask him to provide the same amount of detail. That being said, redirect examination brought out that Mr. Farrugia’s interview with the Department of Labour still contained significant details about his compliance checks on March 18 and 19 even if, in responding to the Crown’s questions, he went into greater detail. [69] There is documentary evidence to corroborate Mr. Farrugia’s testimony that he was at the Brunswick Street construction site on March 18 and 19 to ensure the hoists were code-compliant: • Mr. Farrugia was at the site with the CAN/CSA-Z185-M87 Safety Code for Personnel Hoists. (Exhibit 8) In his testimony he indicated a number of standards that he was checking the hoists against on March 18 and 19; • The email Mr. Farrugia sent to Bill Phillips on April 16, 2014 (Exhibit 11), which the Crown has characterized as advice only, lists fourteen “inspection points” that Mr. Farrugia said he had “observed while on-site in March.” The items in the email referenced: training of hoist operators (it is to be recalled that Mr. Farrugia had requested the training materials from Mr. Phillips in an email of March 14); electrical disconnects in the hoist shacks; torqueing the mast tower sections fastening bolts as per installation manual and having a torque wrench available; the need for a procedure to check rack and pinion teeth wear; the need for landing lights in the event of night-time use of the hoists; compaction test records; electrical schematics; fire extinguishers; hoist machine brake tests; no-load safety tests; capacity plates; overhang/overhead protection at the bottom where passengers wait for the hoist; and excess wind monitoring devices. These are all code-compliance items. Despite the Crown dismissing these items as advice, for Mr. Ferrugia to have “observed while on-site”, he would have had to be doing what he said he was doing, consulting the code requirements and checking the equipment; • In his April 16 email to Mr. Phillips, Mr. Farrugia also included some comments about aspects of the installation process “as previously discussed” which, he said, “may have been addressed already.” He then itemized them. He explained the note he had made at the end of the email that read: “Please take note that I am not trying to change any of your company’s policies but just thought that I would mention what I observed on site and hope I do not offend anyone…” Mr. Farrugia testified that he added this note to the email because he wasn’t sure if changing an aspect of the hoist installation process could create an unsafe situation. Mr. Farrugia says his uncertainty about this was because he “wasn’t familiar with the install.” The deferential tone of his note is not consistent with him having assumed the role of supervising the installations. [70] Furthermore, I am also not persuaded by the Crown’s argument that the “VTEC/Safway” contract contemplates VTEC assuming a supervisory role for the installations. I find the reference in the contract to VTEC providing Class A services to “Total Completion” is consistent with code compliance services given that “Total Completion” is deemed to be “the point the hoists are erected and the local Elevating Device Authority (Elevators and Lifts Division) has completed the hoist’s initial inspections.” (Exhibit 2, Tab 4) And the reference to a Class B mechanic (a certification required for installation not code compliance) is found under “Owner’s Requirements” and cannot be interpreted to mean that VTEC was contracting to supervise the installation. I find what is significant in the “VTEC/Safway” contract is the absence of the language found in the “Scott Elevator Manufacturing/Safway” contract – the agreement “to provide on-site installation assistance (one (1) class A elevator mechanic) to Owner’s hoist manufacture trained/certified installation personnel.” (Exhibit 6, page 8) [71] I am satisfied the evidence establishes that between the beginning of March and March 13, 2013, Safway was intending to retain Garry Scott as its Class A elevator mechanic to supervise the hoist installations at the Brunswick Street construction site. Engaging Mr. Scott to occupy this role was undertaken by VTEC. This is consistent with Mr. Farrugia’s evidence that he did not have the experience to supervise the hoist installations. This evidence was not contradicted. Bill Phillips said it was possible Mr. Farrugia had told him this. And there is evidence from other Crown witnesses that Mr. Farrugia did not have this expertise: Garry Scott testified to this effect and Chris Judge said from what he could gather about Mr. Farrugia, he was “an elevator mechanic for inside elevators”. He had the impression that Mr. Farrugia’s experience was not in construction elevators. [72] I place no weight on the content of Mr. Farrugia’s emails of May 31, 2012 and January 2, 2013 that appear to suggest VTEC had hoist installation experience. I infer from these emails that Mr. Farrugia was trying to reel in business. These emails are also not proximate in time to the events relevant to the March 19 incident. VTEC’s role at the construction site must be assessed on the basis of what Mr. Farrugia actually did in relation to the March 18 and 19 hoist installations. [73] I find it has not been proven beyond a reasonable doubt that VTEC was at the Brunswick Street construction site on March 18 and 19 to supervise the installation of the hoists. The “VTEC/Safway” contract, Mr. Farrugia’s activities at the site, the documentary evidence such as the April 16 email from Mr. Farrugia to Mr. Phillips, and Mr. Farrugia’s uncontradicted recollection of the role VTEC was retained by Safway to perform in relation to the hoists leave me with a reasonable doubt that VTEC was the Class A mechanic for the hoist installations. Conclusion [74] The Crown’s case rests on proving beyond a reasonable doubt that VTEC had the responsibility for supervising the installation of the Brunswick Street hoists. As a consequence of my determination that the Crown has failed to prove that VTEC was contracted to do anything more than code compliance, I find VTEC not guilty of the charge under section 74(1) of the OHSA.