Ontario Ministry of Labour and Ministry of the Environment v. Sunrise Propane Energy Group Inc. et al.

COURT FILE #s. 09300354, 10400978 and 05001902: Toronto

DATE: June 27, 2013

Citation: Ontario (Ministry of Labour and Ministry of the Environment) v. Sunrise Propane

Energy Group Inc. et al., 2013 ONCJ 358

ON TAR IO COUR T OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN (ONTARIO MINISTRY OF LABOUR) AND HER MAJ-

ESTY THE QUEEN (ONTARIO MINISTRY OF THE ENVIRONMENT)

— AND —

SUNRISE PROPANE ENERGY GROUP INC.

— AND —

1367229 ONTARIO INC

— AND —

SHAY BEN-MOSHE

— AND —

VALERY BELAHOV

Before Justice Chapin

Heard on January 30^th, 31^st, February 2^nd, 3^rd, 6^th, 7^th, 8^th, 9^th,13^th, 14^th, 21^st, 23^rd, June 11^th, 12^th

14^th, October 1^st, and November 7, 2012

Reasons for Judgment released on June 27, 2013

Nicholas Adamson and Justin Jacob for the Ministry of the Attorney General, Ministry of the

Environment

Wes Wilson and Jai Dhar for the Ministry of the Attorney General, Ministry of the Environment

Leo Adler for the defendants Sunrise Propane Energy Group Inc., 1367229 Ontario Inc., Shay

Ben-Moshe and Valery Belahov

— 2 —

Chapin J.:

Index

Page

1.

Introduction

1

2.

3.

The Agreed Statements of Fact

Evidence Called at Trial

4

9

a. The Regulation of Transportation\Handling Propane

b. The Application for a Modification

c. Construction of the 30,000 USWG Tank

d. Mandatory Propane Training

e. The Explosions

f. The Cause of the Explosions

12

22

26

32

37

42

g. The Clean-up After the Explosions

4.

5.

The Occupational Health and Safety Charges

a. Position of the Crown

b. Position of the Defence

c. Analysis

57

58

69

74

The Environmental ProtectionAct s. 14 Charge

a. Position of the Crown

80

93

99

b. Position of the Defence

c. Crown Response to Defence Submissions

6.

7.

The Breach of Order Charges

99

101

109

115

118

129

a. Position of the Crown

b. Position of the Defence

c. Crown Response to Defence Submissions

c. Analysis regarding s. 14 charge

d. Analysis regarding the Breach of Order Charges

Conclusion

134

-------------------------------------------------------

— 3 —

Introduction

[1] The defendants are charged with a number of regulatory offences under the Environmen-

tal Protection Act, R.S.O. 1990, c. E. 19 as amended and the Occupational Health and Safety Act

R.S.O. 1990, c.0.1 as amended. These charges arise out of a series of explosions that occurred at

54 Murray Road in the city of Toronto in the early morning hours of August 10, 2008. At the

time of the explosions there were two employees at the site. Mr. Felipe De Leon had just refilled

a small propane truck with propane from a larger truck and Mr. Parminder Singh Saini was dis-

pensing propane to automobiles. Mr. De Leon was able to escape the site with relatively minor

injuries; however, tragically, Mr. Saini was killed by the explosions.

[2]

There are three informations before the Court. Counsel agreed to have all of the defend-

ants arraigned on all charges at the same time and that the evidence at trial would apply to all of

the charges. This is because much of the evidence called provided context for all of the charges.

There are two sets of charges under the Environmental Protection Act. The first set relates to the

discharged contaminants that were released into the environment as a result of the explosions and

the second set involves alleged non-compliance with Orders that were issued after the explosion

had occurred.

[3]

Sunrise Propane Energy Group Inc. and 1367229 Ontario Inc. are jointly charged with

discharging or causing or permitting the discharge of a contaminant, namely sound, vibration,

heat, gas vapour or solids, into the natural environment that caused or was likely to have caused

an adverse effect, contrary to Sec. 14(1) of the Environmental Protection Act, R.S.O. 1990, C. E.

19 as amended, thereby committing an offence under Sec. 186 (1) of the Act.

[4]

Sunrise Propane Energy Group Inc. is also charged with five counts of failing to comply

with a provincial officer’s Order contrary to Sec. 186(2) of the Environmental Protection Act,

R.S.O. 1990, C. E. 19 as amended, failing as an employer to provide information, instruction and

supervision to a worker to protect the health or safety of the worker at a workplace contrary to

Sec. 25(2)(a) of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1, as amended and

failing as an employer to take every reasonable precaution in the circumstances for the protection

of a worker at a workplace contrary to Sec. 25(2)(h) of the Act.

[5]

Mr. Shay Ben-Moshe and Mr. Valery Belahov, being directors of the corporation, are

both charged with failing to take all reasonable care to prevent the corporation from contravening

a provincial officer’s Order contrary to the Environmental Protection Act, R.S.O. 1990, C. E. 19

as amended. The wording on counts six and seven of this information was amended during the

course of the trial to change the wording from “did commit the offence of being the director of a

corporation....” to “did commit the offence of being a director of a corporation”.

[6]

The charges under the Occupational Health and Safety Act allege that Sunrise Propane

— 4 —

Energy Group Inc. failed to provide appropriate information, instruction and supervision to Mr.

Saini regarding the safe work practices and recognition of hazards associated with propane stor-

age, dispensing, handling and appropriate emergency response to propane leaks. And, that on or

about the 10^thday of August, 2008 Sunrise Propane Energy Group Inc. did commit the offence

of failing as an employer to take every precaution reasonable in the circumstances for the protec-

tion of a worker at a workplace located at 54 Murray Road, contrary to section 25(2)(h) of the

Occupational Health and Safety Act by failing to take the reasonable precaution of ensuring that

a propane facility was installed and operated in accordance with regulatory requirements and

safe industry practice.

The Agreed Statements of Fact

[7]

At the outset of the trial three agreed statements of fact were read into the record. Any

admission or agreement in the agreed statement of facts is not meant to be an admission or

agreement by any of the defendants for any other purpose or legal proceedings, whether contem-

plated or currently underway, and as such it is restricted to these proceedings under the Provin-

cial Offences Act, and for the purposes of these proceedings only.

[8]

The agreed statement of facts for the Sec. 14 Environmental Protection Act charges is

as follows:

Sunrise Propane Energy Group Inc. is and was on August the 10^th, 2008, a

corporation duly incorporated under the laws of Ontario. On or about Au-

gust the 10^th, 2008, Sunrise Propane operated a propane business that sup-

plied propane and industrial gases at a facility located at 54 Murray Road

in the city of Toronto. 1367229 Ontario Inc. is and was on August the

10^th, 2008, a corporation duly incorporated under the laws of Ontario.

1367229 Ontario Inc. carries on business as Sunrise Propane, and was on

August the 10^th, 2008, the holder of an authorization pursuant to Ontario

Regulation 211/01 made under the Technical Standards and Safety Act,

S.O. 2,000, CHAPTER 16, to operate a propane refill cylinder and motor

fill at the facility. From September 2004 up to and including August

2008, 1367229 Ontario Inc. leased the property on which the facility is lo-

cated from Teskey Construction Co. Ltd.

On August the 9^th, 2008, Sunrise Propane dispatched Victor Vlad an inde-

pendent contractor who drove propane tankers for Sunrise Propane to

drive cargo liner unit 861 to the BP Energy Canada Ltd. liquid propane

terminal in Sarnia to purchase bulk propane. Cargo liner unit 861 was a

tanker trailer with an 18,000 USWG capacity, or 68,000 litres. Sunrise

Propane leased unit 861 from 1452049 Ontario Inc., a company owned by

Gary Mizlitsky which operated as Discount Propane out of the same 54

Murray Road facility. Mr. Mizlitsky also worked for Sunrise Propane as

its fleet manager and dispatcher in which capacity he would direct Sunrise

— 5 —

Propane drivers to drive to Sarnia to pick up bulk propane and transport it

back to the facility from which it would be distributed to Sunrise Propane

customers. He would also take orders from Sunrise Propane customers

and direct Sunrise Propane drivers to make propane deliveries to those

customers.

On August 9^th, 2008, Mr. Vlad filled unit 861 with approximately 15,600

USWG, or 59,000 litres, of liquid propane from the terminal in Sarnia, and

then drove unit 861 back to the facility where he parked it at approximate-

ly 5:00 p.m. Unit 861 was typically used to fill smaller propane tanker

trucks for delivery in and around the Greater Toronto Area, to customers

whose sites would be inaccessible using a larger tanker trailer like unit

861. One of these smaller cargo liners was unit 1 which had a tanker ca-

pacity of 14,900 USWG, or 56,400 litres, for liquid propane. When unit

861 returned to the facility on August the 9^th, 2008, Mr. Vlad transferred

approximately 4500 to 5300 USWG, or between 17,000 to 20,000 litres,

of liquid propane from unit 861 into unit 1.

At approximately 8:45 p.m., Felipe De Leon, another independent contrac-

tor who drove propane tankers for Sunrise Propane, arrived for work.

Gary Mizlitsky dispatched him to deliver propane using unit 1, to four

Sunrise Propane customers, before returning to the facility. Unit 1 was

approximately 50 per cent full when Mr. De Leon returned to the facility

at around 3:00 a.m. on Sunday, August the 10^th, 2008. Mr. De Leon did a

truck-to-truck transfer of liquid propane from unit 861 to unit 1. As a re-

sult of the transfer, unit 1 was filled to between 85 per cent and 90 per cent

of its capacity.

At about 3:47 a.m. on August the 10^th, 2008, there was a large propane va-

pour cloud explosion at the facility, hereafter referred to as explosion #1.

Explosion #1 was followed by numerous smaller explosions as the heat

from explosion #1 ignited tanks of propane belonging to Sunrise Propane

and other companies that were stored at the facility. Approximately six

minutes after explosion #1, there was a second large propane explosion at

the facility, explosion #2. Explosion #2 was a BLEVE, an acronym for

boiling liquid expanding vapour explosion, of unit 1, the tanker that Mr.

De Leon had been filling. After explosion #2, further smaller explosions

of smaller tanks of propane followed until the daylight hours. The pro-

pane that exploded in explosion #1, explosion #2, and in the other smaller

explosions that followed both explosion #1 and explosion #2, was under

the management and control of Sunrise Propane.

[9]

The propane explosions at the facility on the morning of August the 10^th, 2008, resulted

— 6 —

in a discharge of contaminants from the facility into the natural environment. The contaminants

that were discharged included heat, vibration, sound, gas vapour, smoke, and solids such as as-

bestos, dust, metal fragments, and other debris. The discharged contaminants caused a variety of

adverse effects, including personal injuries, including cuts, bruises and burns to neighbours in

nearby residences, damage to neighbouring residences, including shattered windows, blown-in

garage doors and structural damage to walls, ceilings and roofs. Some homes were rendered un-

inhabitable for over a year. Many nearby residents were forced to immediately flee from their

homes due to the on-going explosions and/or the threat that their homes might collapse due to the

structural damage caused by the explosions.

[10] Approximately 12,000 residents within a 1.6 kilometre radius of explosions were evacu-

ated in the middle of the night due to the threat of further explosions while the fire persisted at

the facility. Residents who were displaced by the blasts suffered lost wages, and were forced to

pay out-of-pocket expenses for temporary shelter and clothing. Two local elementary schools

suffered structural damage, and while all repairs and clean-ups were completed before the open-

ing of the schools in September, significant disruption occurred as teachers and custodians were

unable to access the premises during the latter half of August when they would normally be

completing preparatory work.

[11] Local businesses suffered structural damage to buildings, closures to the public which

caused losses of revenue and losses of working shifts. One business, a car dealership, was com-

pletely destroyed. Buildings and headstones in the neighbouring cemetery were damaged. As-

bestos, including friable asbestos which is the most dangerous form of asbestos and other debris,

including large metal fragments from the exploded tanks, was dispersed into the neighbourhood

as far away as one kilometre from the facility. However, air quality testing commenced on Au-

gust the 12^th, 2008, and continued throughout the clean-up, subsequently confirmed that airborne

asbestos levels were not at levels that would cause human health effects. A local child-care cen-

tre was temporarily closed due to the potential for asbestos contamination. Mr. Parminder Singh

Saini, a part-time employee of Sunrise Propane who was working the night shift at the facility at

the time of the explosions, was killed in the explosions.

[12] The agreed statement of facts regarding the Occupational Health and Safety Act

charges was read in as follows:

Sunrise Propane Energy Group Inc. was at all material times a corporation duly registered pursu-

ant to the laws of the Province of Ontario. On August 10, 2008, Sunrise was an employer as de-

fined by the Occupational Health and Safety Act. Parminder Singh Saini, date of birth 26 Sep-

tember 1983, arrived in Canada in December 2007. Saini was enrolled in Sheridan College in

Brampton. He was studying quality assurance and mechanical engineering. Saini was employed

by Sunrise as an auto cylinder filling attendant at the company’s facility located at 54 Murray

Road in the city of Toronto, for four to five and a half months, he worked night shifts on Friday

and Saturday nights, he was a worker as defined by the Occupational Health and Safety Act, he

was only responsible for filling automobiles, primarily, taxicabs, with propane. Saini was work-

— 7 —

ing on the night of August 9^thto 10^thof 2008. At about 3:47 a.m. on August 10, there was a

large propane vapour cloud explosion at the Sunrise facility. Saini was killed in the explosion;

the cause of death was inhalation of flames.

The TSSA and its regulations require that an auto cylinder filling attendant

have PPO3 training. Sunrise used only three people for training employ-

ees, Shay Ben-Moshe, Mike Martin and Brent McIntyre. Shay Ben-Moshe

did not provide training of any kind to Saini, Valery Belahov did not pro-

vide training of any kind to Saini. The deceased is not the same person as

Parminder Singh, date of birth 24 October 1983, who is PPO3 trained.

In 2005, the Sunrise Propane facility at 54 Murray Road had been licensed

by the TSSA to operate as a propane refill centre, cylinder and motor fill,

utilizing two 2,000 U.S. Water Gallon, (hereinafter referred to as

“USWG”) tanks, a remote dispenser and a cylinder fill building with a cyl-

inder storage area. One 30,000 USWG tank was delivered to the site on

September 25, 2007. Around this time, the two 2,000 USWG tanks that

were connected to the cylinder fill and dispenser location were moved ap-

proximately 35 to 40 feet from their original location. Their orientation

was also changed from north/south to east/west. This involved moving the

tanks and associated equipment, and reconnecting the piping system. 35 to

40 feet of piping was configured and installed, it also included additional

piping and the re-installation of flexible hoses to accommodate the new

configuration. Electrical wiring had to be disconnected and reconnected.

[13] The third agreed statement of facts regarding to failure to comply with Orders con-

trary to the Environmental Protection Act reads as follows:

Sunrise Propane Energy Group Inc. is and was in August 2008, a corpora-

tion duly incorporated under the laws of Ontario. On or about August the

10^th, 2008, Sunrise Propane operated a propane business that supplied

propane and industrial gases at a facility located at 54 Murray Road in the

city of Toronto. Shay Ben-Moshe and Valery Belahov were directors of

Sunrise Propane at all relevant times, including between August the 10^th,

2008, and August the 24^th, 2008.

On August the 10^th, 2008, beginning at approximately 3:47 a.m., a series

of explosions of propane occurred at the facility. The explosions resulted

in a discharge of contaminants from the site onto the surrounding proper-

ties in a wide radius around the site. The contaminants included asbestos,

particulate matter of solids and dust. Asbestos waste discharged onto the

surrounding neighbourhood by the explosions was first identified on Au-

gust 11^th, 2008, by Team Hazco Emergency Services which had started a

— 8 —

cleanup of the neighbourhood impacted by the explosions. The asbestos

waste air quality testing started August 12^th, 2008, showed that airborne

asbestos levels never reached levels that would cause human health ef-

fects.

As a result of the explosions, a number of residences and businesses in the

area were evacuated until such time as the area was deemed safe from fur-

ther explosions at the site, and the health risks associated with exposure to

the asbestos were assessed and eliminated. In order to prevent a decrease,

or eliminate, any adverse effect that may have resulted from a discharge of

any contaminants from the facility, Ministry of the Environment provin-

cial officer Marianne White issued a provincial officer’s Order #6586-

7HGMXF, on August 13^th, 2008, to Sunrise Propane. On August the 13^th,

2008, between 10:00 a.m. and 10:30 a.m., Officer White and Ministry of

the Environment Acting District Manager Kathleen Anderson met with

Valery Belahov at the Ministry of the Environment offices at 5775 Yonge

Street in the city of Toronto. During this meeting, Officer White reviewed

a draft version of the Order with Mr. Belahov which included an overview

of each of the seven required work items. After this meeting, Officer

White finalized and signed the Order, and at approximately 3:00 p.m., she

called Mr. Belahov, and left a voice message indicating the Order was fin-

ished, and asked to arrange a meeting so that the Order could be served.

At about 3:18 p.m., Officer White received a call from Robert Warren,

counsel at WeirFoulds LLP. Mr. Warren indicated that he was calling on

behalf of Valery Belahov and Shay Ben-Moshe.

At about 3:43 p.m., Norm Rankin, counsel at the Ministry of the Environ-

ment, e-mailed a copy of the Order to Mr. Warren, and asked that he ac-

cept service on behalf of Sunrise Propane.

At 3:57 p.m., Mr. Rankin and Officer White spoke to Mr. Warren and

John Buhlman, also counsel at WeirFoulds LLP, and they advised that

they did not have instructions to accept service of the Order.

At about 4:41 p.m., Dan Ronen, corporate counsel retained by Sunrise

Propane, attended the Ministry of the Environment offices at 5775 Yonge

Street, and accepted service of the Order on behalf of Sunrise Propane.

Officer White reviewed the Order with Mr. Ronen, and provided him with

three copies of the Order. Mr. Ronen advised Officer White and Mr. Ran-

kin that he would be delivering the Order to his client Sunrise Propane

when he left the meeting. Mr. Ronen delivered the Order to Shay Ben-

Moshe and Valery Belahov, after he left the meeting at 577 Yonge Street,

— 9 —

at sometime between 5:00 and 6:00 p.m. on August 13^th, 2008. The Order

was never appealed to the Environmental Review Tribunal.

Evidence called at trial

[14] I will go on now to review the evidence called at trial. I will attempt to set out the evi-

dence in chronological order where possible.

Evidence Regarding the Regulation of Transportation and Handling of Propane in Ontario

[15] In 1996 the Ontario Technical Standards and Safety Authority (“TSSA”) was created to

deliver public safety services on behalf of the Government of Ontario in a number of key sectors

including: (1) boilers and pressure vessels, (2) operation engineers, (3) amusement and elevating

devices and (4) fuels (including propane) and (5) upholstered and stuffed articles. The TSSA es-

tablishes the legislative and regulatory framework for the management and enforcement of pub-

lic safety laws in the aforementioned designated sectors under the Ontario Technical Standards

and Safety Act.

[16] A number of witnesses who were working at the TSSA at the relevant times were called

as witnesses during this trial.

Ms. Sandra Cooke

[17] Ms. Sandra Cooke began her employment with the TSSA in 2002 as the technical leader

for the fuels engineering program. Her duties included supervising the fuel safety engineers who

review facility licence applications, variance approval applications, equipment approval applica-

tions and regulatory maintenance.

[18] Ms. Cooke explained that the TSSA administers the Technical Standards and Safety Act

which empowers the statutory director to issue safety Orders, Director’s Orders, and variances.

The Act also allows a right of appeal from the Orders of Inspectors and the Director. The Act is

the overarching legislation governing the regulation of fuels. There are a number of regulations

below the Act. One of the regulations relevant to this trial is the Propane Storage and Handling

Regulation, Ontario Regulation 211 which contains specific information such as when a facility

needs to be licensed, when people handling propane need to be certified and when contractors

need to be registered. Below the regulations the TSSA adopts codes. With respect to propane the

code involved is the National Propane Storage and Handling Code (“the code”). This code sets

out, in much greater detail, what is required at a propane filling plant. As part of her duties Ms.

Cooke would, along with others, draft Code Adoption Documents. These Code Adoption Docu-

ments may make changes or additions to the code or may provide interpretations of sections in

the code. The Code Adoption Documents are Director Orders which make the requirements

within the code law.

[19] If a propane filling plant was located in a heavily populated area there were special re-

quirements that had to be satisfied. In 1993, the TSSA developed a standard (Branch Standard

— 10 —

No. 9) that was re-issued in 2001. It imposed additional restrictions for propane tank placement

in heavily populated areas. A radius of 300 ft. would be drawn around the tank, and then an as-

sessment of building occupancy would be made according to the formula. The standard also said

that a tank could not be within 300 ft. of a school, and also could not be within 25 ft. of a resi-

dential building.

[20] In 2005 Ms. Cooke sat on a standing committee, the Risk Reduction Group, as part of her

duties. The group involved members from the industry as well as two associations: the Ontario

Propane Association and the Propane Gas Association of Canada. The Ontario Propane Associa-

tion represented most of the facility owners in Ontario.

[21] An issue regarding truck-to-truck transfers was brought to the committee by one of the

members. She explained that section 7.13 of the code allowed truck-to-truck transfers at a facility

that had fixed storage capacity of at least 5,000 USWG. The member had indicated that there

was some confusion regarding the industry requirements for transferring propane from one tank

truck to another.

[22] There were a number of concerns with truck-to-truck transfers. One concern was that an

explosion had occurred in New Jersey in 2003 while a truck-to-truck transfer was being conduct-

ed. Another was that a facility could increase its capacity for propane storage without the TSSA

knowing about it. For instance, a facility licensed for 5,000 USWG could bring a truck on site

that was carrying 20,000 USWG and there would be no way to ensure that ignition sources were

far enough away from the truck. This was also a concern as the licensing fees were based on the

amount of propane stored at the site.

[23] Ms. Cooke, Mr. Alonzo, (a fuel safety engineer), and Mr. Heyworth, (a fuel safety in-

spector), prepared an advisory report on these types of transfers. The advisory report they pre-

pared provided clarification and said that trucks were not to be used for storage unless they were

fixed and licensed. This meant that the wheels had to be taken off as well as the axle. The advi-

sory also indicated that a proper set-back from sources of ignition would be required. This advi-

sory was provided to the industry on November 1, 2005 and was posted on the TSSA website.

Email notifications also went out to the industry members.

[24] The next meeting of the Risk Reduction Group after the November 2005 advisory was

released was in May 2006. There was very vigorous debate at this meeting regarding the prohibi-

tion against truck-to-truck transfers, with limited exceptions being contained in the advisory. The

group was divided as to whether or not it should be allowed. Some of the members of the group

believed that the TSSA was re-writing the code.

[25] As a result of that meeting Ms. Cooke decided to prepare a Director’s Order which could

allow for the change to be adopted as law. She felt that the industry had valid concerns and some

pointed out additional concerns as follows;

 that there may not be sufficient lighting where the trucks park if the transfers were con-

— 11 —

ducted in the evening,

 if the TSSA was not aware of how these transfers were being conducted they may not be

able to inspect properly, and

 there might not be appropriate clearances from possible sources of ignition depending on

where the trucks were parked.

[26] As a result, the code advisory document was withdrawn. Ms. Cooke felt that the industry

members had a point when they complained that the TSSA was changing the code through an

interpretation process.

[27] The Director’s Order was prepared and signed and Ms. Cooke went through the process

required to have the Order issued. Although Ms. Cooke could not locate the signed copy of the

Director’s Order to bring to the court she believes that it was signed and said that it was posted

on the TSSA website on October 31, 2006 and in two TSSA newsletters the following March

along with an article on truck-to-truck transfers. She believes that the Order was signed because

it never would have been posted on the TSSA website if it had not been signed. The intent of the

Order was to restrict truck-to-truck transfers to bulk plants only.

[28] Ms. Cooke agreed in cross-examination that the main concern that prompted the creation

of the Director’s Order was the complaint that some businesses were paying lower fees for li-

cences when they were actually storing larger amounts of propane by having large tanker trucks

on site. She also agreed in cross-examination that she was not sure whether or not she was aware

of the New Jersey explosion in 2003 when she was drafting the Director’s Order and that the

TSSA did not have any statistics or studies regarding the threat to public safety while a truck-to-

truck transfer of propane was being done. It was Ms. Cooke’s view that it is a matter of common

sense that there is a threat of an explosion during the transfer process.

[29] A newsletter was sent out in the winter of 2007 that specifically referred to the Director’s

Order and the entire Order was set out in it. The TSSA used Canada Post to deliver the newslet-

ter and was invoiced for this work on March 16^th, 2007. Ms. Cooke believes that it would have

been mailed about a week prior to the invoice being issued.

[30] As far as Ms. Cooke was aware there was never an appeal of the Director’s Order; how-

ever, she was aware of a company in Hanover, Ontario that sought a variance of the Order. That

company eventually withdrew the request and installed a fixed tank. She was not aware of any

other requests for a variance.

[31] Ms. Cooke was also not aware of any appeal or correspondence regarding the Director’s

Order. If either had been sent to the TSSA Ms. Cooke advised that it would have come to her

attention as she was responsible for the drafting and development of Director’s Orders. She was

also sure that an appeal and letter regarding the Order would have been discussed with her.

[32] The Director’s Order was also included in a Propane Code Adoption Document Amend-

— 12 —

ment dated June 12, 2007 which was issued and posted on the TSSA website on June 14, 2007.

[33] Ms. Cooke advised that the TSSA had not approved any truck-to-truck transfers since the

Propane Code Adoption Document was issued.

Evidence Regarding the Application for a Modification to the Propane Storage Capacity at

54 Murray Road by 1367229 Ontario Inc.

Marek Kulik

[34] Marek Kulik has been employed by the TSSA as an Engineering Technologist at the time

of trial since June of 2007. In 2007 he was assigned to review propane applications regarding

distribution and filling. Applications of this type must be accompanied by a pre-installation site

check sheet, a letter from the relevant municipality confirming that the applicant’s proposed site

complies with zoning by-laws, confirmation that the proposed project complies with Branch

Standard No. 9 and a site plan.

[35] He reviewed an application for an Ontario Licence to Operate a Propane Cylinder Han-

dling Facility made by 1367229 Ontario Inc. for a modification to the facility located at 54 Mur-

ray Road in Toronto. The proposal involved the installation of a 30,000 USWG tank in October

of 2007. Sean Ben-Moshe was listed as the owner of the company on the application form and

was listed as the applicant on the “Pre-installation Site Checksheet”. Sunrise Propane Industrial

Gases was listed as the supplier on the form. A letter dated July 9, 2007 from J. Ross Keys was

received confirming that he had reviewed the information regarding the proposed 30,000 USWG

tank and that it complied with Branch Standard No. 9. In cross-examination Mr. Kulik agreed

with counsel for the defendants, that it was possible that the July date was a “typo” but as it was

1

not his document he could not comment further. A letter dated December 4, 2006 to J. Ross

Keys from Ted Glass, Zoning Examiner, confirmed that the proposed propane facility would be a

permitted use under the zoning code was also received along with a site plan with the name

“Sunrise Propane”.

[36] In cross-examination Mr. Kulik was asked whether or not he had reviewed the Director’s

Public Safety Order of October 27, 2006 given that Mr. Keys specifically referenced it in his let-

ter of July 9^th, 2007 to Mr. Alonso (which was sent in October of 2007). Mr. Kulik could not re-

call whether or not he had read the Director’s Order while reviewing the package given the pas-

sage of time but explained that he did not need to read it to do his job. He was reviewing a pro-

posed modification and not an existing facility. From his perspective the application was for a

brand new facility, even though it was the same site. This was because the two 2,000 USWG

tanks were not shown on the site plan and this letter was not relevant to what was required of

him. An inspector would have already been paid to review the existing facility with the two

2,000 USWG tanks. He would not be reviewing it again and charging the client for it.

[37] Mr. Kulik reviewed the application package, approved it, and sent a letter to Mr. Ben-

¹Mr. J. R. Keys later confirmed in his evidence that the letter was sent in October of 2007.

— 13 —

Moshe dated November 8, 2007 advising him that an inspection of the site would need to be

scheduled and asked him to contact Ms. Mary Ferrari, a TSSA inspector. This letter was copied

to Mr. Keys as he was the engineer on the project. Mr. Kulik assigned the inspection to Ms. Fer-

rari, as assignments were based on the regions the inspectors had been assigned. A copy of the

letter would have been sent to the inspection department and Mr. Kulik would have kept a copy

of the letter for his files. This meant that construction could begin but the new 30,000 USWG

tank would not be able to pump or receive propane until it had been inspected.

[38] Mr. Kulik’s November 8, 2007 letter had a licence number in the top left portion of the

document; however, Mr. Kulik explained that a license number is assigned at the beginning of

the process for tracking purposes. It did not mean that a licence had been issued. Once the in-

spector completes the inspection a licence could be issued by him or her. An inspector may or

may not have had a part to play in a particular application but typically inspectors don’t get in-

volved in the process.

[39] Mr. Kulik was asked if he was able to identify some handwriting on his letter to Mr. Ben-

Moshe of November 8, 2007 introduced as Ex. 28 tab K. At the top of the document someone

had hand-written the following “forward to Don H.” In the second paragraph someone had

scratched out Ms. Ferrari’s name and had written in “ Don Heyworth” and at the bottom of the

letter someone had written “NOV 16/06 MTG. DRAWINGS SEAN, ROSS, 1.5 HRS.” Mr.

Kulik did not recognize the writing.

[40] Mr. Kulik was referred to the original site plan which did show the two 2,000 USWG

tanks as well as the proposed plan drawing, Ex. 29, and agreed that it did appear that the 30,000

USWG tanks would be in the same approximate area; however, he did not go to the site and

could not say for certain. He did not need to review the previous plan to complete his task and

confirmed that if the two 2,000 USWG tanks were to be moved, even temporarily, the owner

would have to complete an application for a modification of the plan because the prior location

was approved based on the code and the new location would have to continue to meet the re-

quirements of the code.

[41] Mr. Kulik was cross-examined about the use of the words in item 9 of the notes on exhib-

it 29 “facility used for filling plant services for bulk truck and cylinder refilling purposes”. In re-

examination he made it clear that those notes refer to the new facility to be built. The notes on

the previous diagram that show the two 2,000 USWG tanks refer to “facility used for retail cyl-

inder refuelling only”.

Donald Heyworth

[42] At the time of trial Mr. Heyworth had worked for the TSSA for 14 years. He is an inspec-

tor with the Fuel Safety Division and works out of his home office in Stouffville. His duties re-

quire him to conduct bulk propane plant inspections of 55 plants located in the area from Lake

Ontario to the south, Parry Sound to the north, Cobourg to the east, and Mississauga to the west.

He has an extensive background in working with heating fuels as he had worked for Superior

— 14 —

Propane for 22 years before he started work with the TSSA.

[43] Mr. Heyworth was assigned work in his region and would bring his computer, which con-

tained pre-loaded TSSA forms, as well as a portable printer. He would also use a Hilroy exercise

book to take field notes during an inspection. During inspections he would prepare a document

titled “Fuel Safety Inspection Report” if a facility was not in compliance and would note what

work had to be done in order for a facility to become compliant with the code. If his portable

printer was working he would print the form at the site. If the printer was not working he would

print it out at the home office and fax it to the facility. The reports would also be forwarded to

the TSSA.

[44] Mr. Heyworth had dealings with the defendants for several years. On November 9^th, 2006

Mr. Heyworth was assigned by his manager, Mike Scarland, to attend one of the defendant’s

propane facilities located at 54 Murray Road in Toronto to ensure that the defendants understood

the Director’s Order of October 2006 regarding truck-to-truck transfers of propane. The TSSA

had been receiving a lot of complaints from competitors in the propane distribution industry al-

leging that the defendants had been using truck-to-truck transfers to increase their propane stor-

age capacity without paying the required fee for that increase and without having to build in-

creased storage capacity.

[45] Mr. Heyworth met with Mr. Ben-Moshe at the site and they accessed the TSSA website

and viewed the Director’s Order. Mr. Heyworth went through the Order with Mr. Ben-Moshe

and advised him that the defendants would no longer be able to fill the smaller Discount Propane

bobtail trucks with propane from the larger cargo liners. Mr. Heyworth described a cargo liner as

a larger tractor trailer unit that carries large volumes of propane whereas a bobtail or bulk truck

is usually a single-axle unit or a tandem rear axle that has a tank on it and would carry a maxi-

mum volume of 4,000 USWG. Mr. Ben-Moshe didn’t object to the prohibition during their meet-

ing. In cross-examination Mr. Heyworth did not recall if he placed a telephone call to Mr.

Alonzo of the TSSA during the meeting.

[46] Mr. Heyworth prepared a “Fuel Safety Inspection Report” dated November 9, 2006. Item

number 4 of that report required that Sunrise Propane comply with the Director’s Public Safety

Order dated October 27, 2006 by November 30, 2006. In cross-examination Mr. Heyworth said

that the November 30, 2006 compliance date was an error and it should have been November 9,

2006. There were three other deficiencies noted in that report. Item number one noted that an

employee was working at the facility and did not have the required training for filling propane

cylinders. In cross-examination Mr. Heyworth agreed that the employee who was not trained on

November 9, 2006 did get trained shortly thereafter. Unfortunately Mr. Heyworth did not keep

his rough notes of the November 9, 2006 inspection.

[47] Item number two referred to a transfer hose used for loading and unloading propane that

was connected to the body of a cargo liner on a reel and was unattended. The danger posed by

this is that a person could get into the truck and drive away with the hose connected. The third

deficiency involved a truck parked without an approved braking method. There were no chock-

— 15 —

blocks placed behind the wheels. The three other items were to be brought into compliance on

the same day. Mr. Heyworth explained that everyone has the ability to appeal an Order made by

an inspector. If there is an appeal the Director can rescind the Order if the Director feels that it is

appropriate. As far as Mr. Heyworth was aware there was never an appeal of the inspection Or-

ders he made that day.

[48] Mr. Heyworth was asked to attend a meeting at the 54 Murray Road location later on in

November of 2006 regarding drawings for a 30,000 USWG propane storage tank that the de-

fendants were considering building at the 54 Murray Rd site. Mr. Heyworth’s recollection was

that Mr. Ross, Mr. Ben-Moshe, Mr. McCullough and Mr. Mizlitsky were there. However, he was

not certain that Mr. Mizlitsky, Mr. Ben-Moshe’s dispatcher, was in attendance.

[49] Mr. Heyworth’s recollection was that the purpose of his invitation to the meeting was for

him to review the drawings of this 30,000 USWG tank to see if there was anything that was a

problem. He conceded that he didn’t recall much about the meeting as it had occurred 5 and ½

years before he was called upon to testify. TSSA inspectors are called on from time to time to do

some consulting work of this nature. His understanding was that the defendants wished to in-

crease their storage capacity as they were outgrowing the two 2,000 USWG tanks that they had

been using. He was asked if someone brought up the issue of whether or not truck-to-truck trans-

fers could continue and his answer was “Yes, no, sorry, no, my answer to that is no”. In cross-

examination he said he made a mistake when he initially said yes during his examination-in-

chief.

[50] In cross-examination Mr. Heyworth conceded that up until February 1, 2012 he had not

recalled that the November meeting regarding the drawings had occurred. A few days prior to

February 2012 he called counsel for the Crown, Ministry of the Environment, Mr. Adamson, to

advise him that he now did have a recollection of the meeting. Mr. Heyworth also said that he

was aware that truck- to-truck transfers were being conducted prior to the Director’s Order com-

ing out in October of 2006. Mr. Heyworth agreed that he had told the defendants they could con-

tinue to operate but vehemently disagreed that he said they could continue with truck-to-truck

transfers. He added that he was not in a position to approve truck-to-truck transfers on behalf of

the TSSA and he did not approve this procedure as a temporary arrangement until the larger tank

was constructed.

[51] Mr. Heyworth was shown an affidavit of Gary Mizlitsky and was asked if there was a

meeting he was at in late November of 2006 where Murray Patton, Mr. Ben-Moshe, Mr.

McCullough and Mr. Mizlitsky were present. Mr. Heyworth didn’t recall Mr. Patton being at a

meeting. He recalled meeting with Mr. Ben-Moshe on November 9^th, 2006 to talk about the

truck-to-truck transfers but insisted that there was no discussion about these types of transfers in

the next meeting in November of 2006 where the drawings of the 30,000 USWG were being dis-

cussed. He did recall that someone asked him the question “Can we continue operating” as he

left the meeting about the drawings and he recalled saying “yes”, but that was it. He meant that

the defendants could continue to transfer propane from their cargo liners to their stationary tanks

— 16 —

and fill cylinders from those stationary tanks. In his view it was Discount Propane’s business that

would be affected as they would no longer be able to transfer propane from the defendants’ cargo

liners to the Discount bobtail trucks.

[52] Mr. Heyworth attended at the 54 Murray Street location several times in November and

December but denied that he ever saw any truck-to-truck transfers going on or that he had any

discussions regarding truck-to-truck transfers. However, he did suspect that these transfers were

occurring. At one point, he couldn’t recall the date, he asked Mr. Ben-Moshe if this was going

on and Mr. Ben-Moshe said yes. Mr. Heyworth did not issue a report ordering him to cease and

desist. However, he denied that he didn’t issue the Order because he had given them permission

to do so. Later in cross-examination Mr. Heyworth said that when he asked Mr. Ben-Moshe

whether they were doing truck-to-truck transfers it was before the Director’s Order had been is-

sued. In re-examination Mr. Heyworth said that the conversation was in the context of the prohi-

bition of truck-to-truck transfers.

[53] Mr. Key’s letter, erroneously dated July 9, 2007, was put to Mr. Heyworth. He acknowl-

edged receiving a copy of the letter. A suggestion was made to Mr. Heyworth that he was aware

from the letter that the truck-to-truck transfers were going on. Mr. Heyworth didn’t appreciate

that from the contents of the letter. The letter did not specify that the defendant would continue

to conduct truck-to-truck transfers.

[54] On May 29, 2007 Mr. Heyworth returned to the facility located at 54 Murray Road to

conduct another inspection and noted that a delivery hose of a cargo liner was attached to the

storage tank again. He issued a “Fuel Safety Inspection Report” requiring the deficiency to be

addressed by June 26, 2007. The client was charged for “double time” as this was a repeat infrac-

tion.

[55] On June 24, 2008 Mr. Heyworth attended at the 54 Murray Road location for a pre-

licence inspection regarding two used cargo liners that had been purchased by Discount Propane.

This was the first time Mr. Heyworth had seen these two trucks. One of the trucks was unit 861.

The trucks passed the inspection and a 90 day temporary licence was issued by the TSSA on July

3, 2008. The subject of truck-to-truck transfers did not come up on this day.

[56] Mr. Heyworth was asked to refer to section 7.3.1 of the code as it was written in 2005.

That section requires that an emergency shut-off valve be installed at all tank truck or cargo liner

transfer locations when the tank has a capacity in excess of 5,000 USWG or if there are more

than one tank that have an aggregate capacity in excess of 5,000 USWG. Mr. Heyworth under-

stood this to mean that at the location the filling or unloading occurs there must be an emergency

shut-off valve when the combined or single tank capacity is over 5000 USWG.

[57] Mr. Heyworth was also referred to section 7.3.6 of the code which sets out the mandatory

means of closure for an emergency shut-off valve. Mr. Heyworth went through the three required

means in the code. The first is an automatic shut-off through thermal actuation which could be

either a nitrogen line made of plastic which would melt in the case of fire and automatically

— 17 —

close the valve and stop the flow of propane. Or a facility could use a fusible link shut off which

is a small piece of lead about 1½ inches long that melts at 212 degrees Fahrenheit. If a fire oc-

curs it would hit the lead which would melt and the valve would shut off the flow of propane as

there is a spring action on the other end of the valve which would snap it shut once the lead

melts.

[58] The second required means of emergency shut-off is a manual shut-off from a remote lo-

cation. Mr. Heyworth explained that this is a type of system that connects all of the safety valves

in the plant and would be located away from the tanks. There is generally a chain attached to this

type of shut-off valve and once pulled the whole plant would shut down. This allows a person to

get to a safe location to shut down the flow of propane.

[59] The third required means of emergency shut-off is a manual shut-off at the installed loca-

tion. This shut-off valve would be on the piping and would require a person to turn it off if there

was a problem.

[60] In cross-examination Mr. Heyworth said that he had met with lawyers for the TSSA re-

garding this explosion and that in one of the meetings he was advised that another witness was

claiming that Mr. Heyworth had given permission for the truck-to-truck transfers to go on. It was

suggested that in the meetings Mr. Heyworth had said that “business would be carried out as

usual” but Mr. Heyworth did not recall saying that nor did he recall saying that “the TSSA was

not in the business of putting people out of business.”

Meetings in November of 2006 Regarding the 30,000 USWG tank

John Ross Keys

[61] Mr. Keys is a professional engineer and has been the owner/operator of Alteng Inc. since

1991. Prior to starting his own business in 1991, he worked at Superior Propane doing projects in

the engineering department for a number of years.

[62] He was working with Sunrise Propane in 1999 or 2000, when the company asked him to

help them secure propane refill centre licenses through the TSSA. Over the years, Mr. Keys did

20-30 projects with Sunrise and Mr. Ben-Moshe had always instructed him to do things by the

book. His normal contact at Sunrise was Mike Martin. Sometimes, he worked with Brent McIn-

tyre, and occasionally he would communicate with Sean Ben-Moshe. Mr. Keys assumed that

Brent McIntyre or Mike Martin was responsible for locating sites for possible propane business

for Sunrise. Most of the projects were quite small propane tank installations.

[63] The code Mr. Keys refers to is the national code B149.2 “Propane Handling Code”, with

the changes that apply to Ontario that Ms. Cooke had referred to earlier. Changes are made

through adoption documents and the TSSA sends out pages that can be inserted into the national

code that are usually coloured for easy reference. Depending on the zoning, a site could be ap-

proved for propane storage, a refilling centre, or a filling plant.

— 18 —

[64] In Toronto, the process involved sending a “permitted use request” to the city. He would

commence filling out two application forms that the TSSA required and include drawings with

them. Mr. Keys would review these applications, refine drawings where necessary, and then send

them out to Mr. Martin or Mr. Ben-Moshe for signature. Then, he would write a letter of declara-

tion confirming that the drawings met the code and the Branch #9 TSSA standard (i.e. calcula-

tions of minimum distance required between propane storage and residential housing based on

pop. density in a 75 ft. – 300 ft. radius).

[65] Mr. Keys explained that once a facility has storage capacity of more than 5,000 USWG, it

can no longer be licensed under the less-restrictive category of a “refill centre”. It must obtain a

full license for a “filling plant”. If a professional engineer does drawings that are stamped and

sealed by him or her with a legal declaration that, in the engineer’s opinion, the site complies

with the code, the company can begin construction without the TSSA’s approval. The site must

still be inspected however, before a license is issued and the site can operate.

[66] A tank can only be filled and operated when a temporary license is issued. An approval

letter with a license number on it from the TSSA is insufficient. An inspection must be done. A

license for a cylinder handling facility permits the site to refill and store cylinders on the site. A

license for a container refill centre permits the site to engage in full operations so long as its stor-

age capacity is less than 5,000 USWG. Mr. Key’s understanding was that the defendants were

strictly involved in cylinder filling and dispensing propane for vehicles at the 54 Murray Road

location.

[67] In November of 2006 Mr. Ben-Moshe contacted Mr. Keys about the Director’s Order that

had been issued on October 27, 2006. It wasn’t clear to Mr. Keys what the Director’s Order was

– he thought it indicated that a site had to have a storage tank facility on its property that would

match or exceed the volume of its largest vehicle. Mr. Keys believed Mr. Ben-Moshe was con-

cerned that the Order was forcing him to put in a larger facility as his two tanks held an aggre-

gate of 4,000 USWG.

[68] Mr. Keys met with Mr. Ben-Moshe on the 16^thof November and they discussed the Di-

rector’s Order together. No one else was at this meeting. Mr. Ben-Moshe wanted to get clarifica-

tion on the meaning of the Order from the TSSA. Mr. Keys agreed that it seemed that a larger

tank would need to be installed to comply with the Order. Propane tanks come in various sizes.

The 18,000 and 30,000 tanks are used about 80% of the time because they are easy to transport

and can be mounted on skid frames. Mr. Keys recommended a 30,000 USWG tank as it allowed

for more inventory control in terms of being able to dump the contents of a truck into the tank if

there was a problem. The defendants decided that they wanted to upgrade their capacity at the

54 Murray Street site by installing a 30,000 USWG fixed tank and modifying their existing li-

cense. They asked Mr. Keys to assist with this application.

— 19 —

[69] Mr. Keys agreed to do so and started the process and wrote to the city on November 21^st

2006 to determine what the maximum storage capacity at that site would be. Mr. Keys received a

letter from Mr. Ted Glass, of the City of Toronto on December 4, 2006 who confirmed that an

increase in storage would be a permitted use based on the information provided by Mr. Keys

previously. As the letter from the city was not definitive in terms of giving approval and did not

refer to a specific amount of storage Mr. Keys wanted to make sure that a 30,000 USWG tank

would be permitted. He called Mr. Heyworth of the TSSA to see if there is something in the let-

ter that has to be specific about the storage capacity and asked if they could meet to discuss it. He

provided the letter to Mr. Heyworth and asked him to follow up with his colleagues in engineer-

ing to see if there had to be something more specific.

[70] Mr. Keys met with Mr. Heyworth and Mr. Ben-Moshe on December 20, 2006 in the

morning. Mr. Keys said there wasn’t really any discussion about the Director’s Order of October

27, 2006. The discussion was centred on Mr. Glass’ December 4, 2006 letter to Mr. Keys. Mr.

Keys asked Mr. Heyworth to take the letter to the head office and show it to the relevant people

at the TSSA. Mr. Keys did not recall anyone mentioning truck-to-truck transfers but said it may

have come up. His main concern was getting the process started for a larger tank and to convey

to Mr. Heyworth that the defendants were intending to comply with the Order. He also wanted to

ensure that the defendants could continue operating their cylinder filling business given that the

Director’s Order said it was effective immediately and December was not the time to be shutting

down a heating business.

[71] In cross-examination Mr. Keys agreed that he knew the difference between metered

trucks, which could measure the amount of fuel delivered to a customer, and non-metered trucks

which would have to transfer their load to metered trucks before delivering the propane to the

customer. The latter would have to be done by way of a truck-to-truck transfer. In re-

examination Mr. Keys said that he did not know if the defendants had metered or non-metered

trucks.

[72] In cross-examination it was also suggested to Mr. Keys that he knew that the defendants

were conducting truck-to-truck transfers and that Mr. Heyworth told Mr. Ben-Moshe that the

business could continue on as it had been operating. Mr. Keys said that the truck-to-truck trans-

fers didn’t really cross his mind as he was more focused on what kind of tank was required. It

was also suggested to Mr. Keys that he had seen a copy of the Fuel Safety Inspector Report dated

November 9, 2006. Mr. Keys said he may have seen it but did not recall if he did. The meeting

concluded with Mr. Heyworth agreeing to take the letter to the head office but Mr. Keys could

not recall anything specific that Mr. Heyworth had said during the meeting but agreed in cross-

examination that Mr. Heyworth had said words to the effect of “you can continue business the

way you’re doing”.

[73] Mr. Heyworth called Mr. Keys a week or two after and said that he had spoken to some-

one at the TSSA and that they would accept the letter if Mr. Keys wanted to proceed. Mr. Keys

— 20 —

told Mr. Ben-Moshe that the TSSA would accept the application if he wanted to go ahead. In

cross-examination Mr. Keys agreed that Mr. Heyworth also told him that there would be no

deadline for putting up the tank as long as the defendants were serious about doing it and that

they could carry on business as usual.

[74] As far as Mr. Keys recalled there was no discussion of a time frame for completion of the

project. Construction of the tank could start in the winter but it would have been costly. If the

ground is frozen there are additional costs involved for heating the ground with heating equip-

ment and using additives for the concrete to allow it to set quickly. Heating systems would also

be required to surround it while the concrete cures. Mr. Keys estimated that the time required for

ordering a tank with the engineer’s drawings, reviewing shop drawings prepared by the fabrica-

tor and final delivery would be approximately four to six months. It would take considerably less

time to obtain a used tank.

[75] After Mr. Keys spoke to Mr. Heyworth, he informed Mr. McCullough that the TSSA was

accepting the city’s letter and giving Sunrise the go-ahead for the new tank. Mr. McCullough

was the contractor who was going to install the new tank. Mr. Keys was informed by Mr.

McCullough that the defendants wanted to go ahead and obtain a 30,000 USWG tank and they

advised him that Pro-Par Manufacturing out of Quebec would be the manufacturer. Mr. Keys

wasn’t sure when he was advised of that but he thought it was in August, September or October

of 2007.

[76] Once the tank arrived at 54 Murray Road Mr. Keys made a site visit on October 15, 2007

and measured the tank for his drawings. It was unusual for him to get to do measurements with

the tank actually there. Normally Mr. Keys would not get a chance to see if propane tanks were

actually installed as he drew them. He had that opportunity at the Sunrise site to see the locations

of the original two 2,000 USWG tanks in comparison to where they would have been on his

drawing.

[77] Mr. Keys saw the two 2,000 USWG tanks at the 54 Murray Street location moved on Oc-

tober 15, 2007, but he was not aware if a modification application was actually made. He ex-

plained that a move of the tanks from a north/south orientation to an east/west orientation would

constitute a modification that required the proper approval from the TSSA in terms of paper-

work, drawings, etc. The concern about moving the tanks would be ensuring that the proper set

backs were being adhered to. It was suggested to Mr. Keys in cross-examination that the respon-

sibility for the project was in his hands and he should have spoken to Mr. McCullough about the

requirement for a application for a modification regarding the two 2,000 USWG tanks that had

been moved. Mr. Keys maintained that he was only responsible for the 30,000 USWG tank as he

thought the others were being moved to another site. He did not ask about them when he was

there.

— 21 —

[78] Mr. Keys advised that if the two 2,000 USWG tanks were being moved a fair distance, a

company would “probably” also need an Electrical Safety Authority certification of inspection

and engineer-approved drawings before the tanks could be re-commissioned into service. If such

an application was made he wasn’t involved. He didn’t think that the tanks were connected as he

had discussions with Mike Martin who advised him that the tanks were going to be moved to a

different location. That is why he showed the total storage as being 30,000 instead of 34,000

USWG for this facility.

[79] Mr. Keys proceeded with the application. The name on the application was 1367229 On-

tario Inc. The same name had been used in the application for the two 2,000 USWG tanks at that

site. However, on this application the name of the supplier was different and was listed as Sun-

rise Propane Industrial Gases. Mr. Keys indicated that the reason for the switch was that he took

the name of the supplier from recent business cards he had obtained from people affiliated with

Sunrise. He had no knowledge of who owned or ran Sunrise Propane and Petroleum.

[80] The application showed that applicant wanted to change the storage capacity to 30,000

USWG, making it jump from a “refill centre” classification to a “filling plant” classification. The

site list provided all the set-back requirements by the TSSA along with copies of the professional

engineer (Mr. Keys’) drawings and declaration that the proposal is in compliance with Branch

Standard #9 municipal approval.

[81] Mr. Keys also sent a letter to the attention of Oscar Alonso of the TSSA dated July 9,

2007 declaring that the tank on the drawings would meet the Code and other TSSA standards.

Mr. Keys explained that the date on the letter was a mistake and it couldn’t have been written on

July 9^thbecause the measurements for the drawings weren’t taken until October 15^thof that year.

He believes he sent this letter on October 19, 2006. According to Mr. Keys construction couldn’t

start until approval of the application had been received from the TSSA. In cross-examination he

agreed that it was his idea to copy Mr. Heyworth with the letter. He explained that he wanted Mr.

Heyworth to be aware the he was being named in the letter and wanted him to agree to what had

happened.

[82] Mr. Keys was asked about truck-to-truck transfers and he advised that he didn’t recall

discussing these with anyone. He didn’t think it was something that would be done at the 54

Murray Road site as they could deliver the propane from their cargo liners to their tanks. His un-

derstanding was that these types of transfers are not prohibited but they are not normally done.

[83] In reference to his letter erroneously dated July 9, 2007 wherein he mentioned that bulk

truck loading as being one of the things that would continue at 54 Murray Road. He explained

that because they were applying to be a filling plant as opposed to a filling centre he wanted to

capture the types of things that a filling plant could do. He advised that at a filling plant bulk

trucks can be filled and cylinders that are stored on docks and trucks can be parked on site. When

Mr. Keys wrote his July 9/October 19^th2007 letter, he didn’t think cargo liners were being load-

— 22 —

ed from Sunrise’s Murray Road site. He believed that the site was strictly a cylinder filling oper-

ation with an auto propane dispenser and a small amount of tank storage. In cross-examination it

was suggested to Mr. Keys that he had told Mr. Pate, an employee of the Ministry of Labour, that

the reference to “bulk truck loading” in the letter meant truck-to-truck transfers. Mr. Keys said it

was possible that he said that but he did not recall saying it.

[84] Mr. Keys received a copy of a letter from Marek Kulik of the TSSA, dated November 8,

2007. The letter said that the documentation Mr. Keys provided to the TSSA for the license up-

grade to a filling plant had been reviewed. Mr. Keys took this to mean that because the 54 Mur-

ray Road license was only being upgraded, it could continue operations; however, he was unsure

what exact operations could be continued until everything had been inspected.

[85] Mr. Keys’ involvement with the project essentially ended after this letter was received.

He was not involved in obtaining a certification of inspection from the Electrical Safety Authori-

ty. This was required, along with the engineer-approved drawings, to be presented to the TSSA

inspector during their visit to inspect the final product. In cross-examination Mr. Keys agreed

that he and Mr. McCullough were responsible for making sure that the new tank was code com-

pliant.

[86] Mr. Keys was asked to describe the various emergency safety features of bulk propane

plants and advised that these types of shut-off buttons are red and tend to be put in places where

people have quick access to them, such as; the bulkhead where a driver would be standing, the

cylinder dock where a worker would be filling cylinders and at the buildings close to the edge of

yard where someone could push them if they were running out of the yard to shut down the en-

tire plant.

[87] During cross-examination Mr. Keys advised that he was being sued by the TSSA as well

as Teskey Concrete Co. Ltd., the landlord of the property.

The Construction of the 30,000 USWG tank

Robert McCullough

[88]

Mr. McCullough was called by the defence. Mr. McCullough started working in the pro-

pane industry in 1993 and learned how to install and repair propane equipment. In 1998 he even-

tually took over the business, Westside Services, which had been owned by his boss. Mr.

McCullough is also registered as a heating fuels contractor under the TSSA which allows him to

work in the fuels industry as governed by the TSSA. Sunrise was one of his clients. He had done

business with the defendants before he took over the business. Westside Services installed the

propane equipment, supplied parts and equipment and re-qualified expired propane cylinders

putting them back into service for the defendants. Although Mr. McCullough wasn’t certified to

do inspections of trucks, he did do a substantial amount of work on the trucks at the 54 Murray

Road site as well.

— 23 —

[89] On June 14, 2008 Mr. McCullough was at 54 Murray Road and replaced the delivery

nozzle and changed a leaking swivel from a hose attached to unit 1. After completing that work

he tested the delivery hose for leaks and it was fine. On June 19, 2008 he was back again and re-

placed the entire delivery hose as it was still damaged. Mr. McCullough was not sure why he had

to go back twice in such a short time but thought he had probably noticed a problem with the

hose the first time and ordered a new one as it would normally take 5 days to arrive. The manu-

facturer was responsible for pressure testing the hose and Mr. McCullough was responsible for

testing the connections.

[90] Mr. McCullough did the original installation of the two 2,000 USWG tanks at 54 Murray

Road for the defendants. He had known Mr. Keys for a number of years and they had worked

together on a number of installations. Mr. McCullough was also involved in the planning for the

30,000 USWG tank. Mr. Ben-Moshe had never asked him to “cut corners” in the work he did for

him and employees were authorized to contact him if they needed assistance with the equipment.

Mr. McCullough would do regular inspections on all of the equipment to make sure it was in

good order; however, he was not in charge of propane safety or supervising employees who used

the propane equipment and did not know who was in charge of that aspect.

[91] Mr. McCullough was asked if there was a preventative maintenance system in place at

the 54 Murray Road location in cross-examination. His view was that the annual inspections he

did at all the sites were preventative maintenance. He had a four page checklist that he would go

through and then he would provide it to Mr. Ben-Moshe. In cross-examination Mr. McCullough

said that he never prepared invoices for the inspections because they were quick to do as the fa-

cilities were in excellent shape given that he had been working on them all year.

[92] In cross-examination Mr. McCullough agreed that he had done work on other sites for the

defendants and that back in August of 2008 the defendants owned 56 other sites. Some of these

sites were as far away as Kingston and Ottawa. Most of the sites were cylinder fill facilities and

some had auto filling capacity. The size of the tanks at these facilities was generally 2,000

USWG. None of the other sites were as large and complicated as the 54 Murray Road site. Mr.

McCullough also agreed that he spent most of his time at the other sites. The defendants were his

biggest client and accounted for most of his income. When he billed them he would make the bill

out to “Sunrise Propane”. As far as he was concerned the company he was dealing with was

“Sunrise Propane”.

[93] Mr. McCullough testified that, unlike the defendants, most companies that were in the

business of propane distribution in Ontario had bulk plants and would send their trucks to Sarnia

to fill up with propane. Once back at the bulk plant they would dump the propane into a big tank

and their smaller trucks would then be filled from the large tank and would then distribute the

propane to customers. The defendants’ truck, unit 1, was a metered truck that could carry 14,000

USWG.

[94] Mr. McCullough had also known Mr. Heyworth for a number of years as of 2006 through

other projects. Mr. McCullough attended the November 16, 2006 meeting at 54 Murray Road

— 24 —

and brought some notes to court to use to refresh his memory. He had made the notes from a spi-

ral notebook he had written in around the time of the events in question.

[95] Mr. McCullough’s recollection was that Mr. Ben-Moshe had called him that day to attend

a meeting at approximately 10 a.m. The meeting was in the boardroom and Mr. Heyworth, Mr.

Ross, Mr. Mizlitsky and Mr. Ben-Moshe were also in attendance. Mr. Heyworth was there to in-

form Mr. Ben-Moshe of a change in the code from a TSSA Director’s Order that required Mr.

Ben-Moshe to have a bigger tank in the yard. Mr. McCullough was not aware of any earlier

meeting with Mr. Ben-Moshe and Mr. Heyworth that had occurred regarding the Director’s Or-

der. As far as he was aware this was the first one.

[96] The discussion at the meeting centred on the fact that a larger tank was required because

Mr. Ben-Moshe’s largest cargo liner held 19,000 USWG and the logical step would be to have a

30,000 USWG. The municipal approval and set back approvals regarding the tank were also dis-

cussed. However, he had no specific recollection of Branch Standard #9 being discussed.

[97] Mr. McCullough did not recall seeing any documentation during the meeting but in cross-

examination he conceded that it was possible that Mr. Keys had brought a drawing of the pro-

posed tank. His understanding of what Mr. Heyworth had said was that the defendants would be

able to continue operating as they had been, including the conduct of truck-to-truck transfers. In

cross-examination Mr. McCullough said he specifically recalled Mr. Heyworth saying that he

didn’t want to put anybody out of business and that he was there to help them comply with the

code changes and was telling them what they had to do to comply. Mr. McCullough conceded

that he didn’t know what Mr. Heyworth’s understanding was of the day to day operations at 54

Murray Road. Mr. McCullough also conceded in cross-examination that he did not know the

extent to which the business would be affected by stopping truck-to-truck transfers would be but

he expected it would be substantial. Mr. McCullough didn’t recall seeing Mr. Heyworth at the

site after the November 16, 2006 meeting until after the larger tank was installed.

[98] Mr. McCullough’s job was to see that the installation of the 30,000 USWG tank was

completed once the approval had been given by the TSSA. On June 11, 2007 Mr. McCullough

made a $10,000.00 deposit on the tank.

[99] Mr. McCullough moved the two 2,000 USWG tanks on September 15, 2007. Given that

the approval for the 30,000 USWG tank had not yet come in, he was asked why he had started to

move the tanks. Mr. McCullough was not clear but said he had probably received a “verbal”

from Mr. Keys that everything was in place and that Mr. Keys was just waiting for the letter. It

didn’t occur to him that this was a modification to the site as the TSSA and the engineer were

both involved in the November 2006 meeting and it was clear from the paperwork that the new

tank was going to be in the area where the two 2,000 USWG tanks were. No one told him that he

needed TSSA approval to move the tanks.

[100] According the Mr. McCullough the defendants were not involved in the decision to move

the tanks; however, Mr. Ben-Moshe was aware that the tanks were being moved. Mr.

— 25 —

McCullough and Mr. Keys made the decision. In order to reorient the tanks he had to disconnect

some of the piping and electrical wiring, lift the tanks with a crane and rotate them 90 degrees

and then move them to the west. Once that was done he reconnected he piping. Mr. Keys was not

on site when the move was being done. In cross-examination Mr. McCullough agreed that he

didn’t know if Mr. Keys was asked to make an application for a modification by Mr. Ben-

Moshe.

[101] The 30,000 USWG tank arrived on September 25, 2007 and Mr. McCullough discussed

the installation with Mr. Ben-Moshe. The weather was bad and they both agreed that the project

would be on hold until the following year. In the spring of 2008 the weather was very rainy mak-

ing it difficult to get anything done and the project was delayed further. Mr. McCullough advised

that welding pipes in the rain would reduce the integrity of the metal in the pipes as they needed

to cool naturally and rain would have made them brittle. Ultimately the strength and integrity of

the welds would be negatively affected. He was also concerned that the very delicate technical

electronic metering devices would be damaged if exposed to water and he and his co-worker did

not like to work in the rain. Mr. McCullough felt that it would be better and safer if the work was

done in good weather. When the weather was good they did work on the tank installation.

[102] In cross-examination Mr. McCullough agreed that it could be that the project didn’t get

started earlier because he was very busy with other work and that he couldn’t blame it all on the

weather. He also agreed that if Mr. Ben-Moshe had asked him to start it earlier in the rain he

would have done so, but he didn’t like to make his employees work in those conditions. Once

Mr. McCullough started working on installing the tank in June he left his larger truck and all of

the tools at the 54 Murray Road site and commuted using a smaller, easier to handle truck.

[103] In Mr. McCullough’s opinion the 30,000 USWG tank would have been above the code

requirements as Mr. Ben-Moshe was talking about putting in additional safety features that were

not required. His estimate of the cost of the installation would be $300,000.00 and said that the

installation of a tank that just met code requirements would cost half of that. In cross-

examination he advised that as of August 2008 he hadn’t yet gone into the planning stages for

the emergency stops and hadn’t discussed them with Mr. Ben-Moshe.

[104] While Mr. McCullough was working on the 30,000 USWG tank the defendants’ workers

would leave the propane hose near the tank. This was annoying to Mr. McCullough and his co-

worker, Mr. Kersey, who hid the hose at one point just to annoy them. He was always in touch

with Mr. Keys in terms of the work and the progress that had been made.

[105] After the November 16, 2006 meeting, Mr. McCullough did a few installations for the

defendants and after the explosion he continued to do work at their other 56 sites. As far as he

was aware Mr. Ben-Moshe was not still involved with those sites after the explosion as the sites

were supplied with propane by another company. After the explosion Mr. Ben-Moshe had called

him and told him that he would be dealing with GM Petroleum instead. When he did work at the

sites he invoiced GM Petroleum and dealt with Gary Mizlitsky who had been a dispatcher for the

defendants. Mr. McCullough did not know if Mr. Ben-Moshe was involved with GM Petroleum.

— 26 —

[106] Mr. McCullough is being sued as a result of the explosion. When asked if the TSSA was

suing him he said that he wasn’t sure as there were many names on the statement of claim and he

just forwarded it to his lawyer.

Evidence Regarding Mandatory Propane Handling Training

Marius Berkel

[107] Mr. Berkel started working for the TSSA in the year 2000 as a senior heating inspector.

In that capacity he was required to inspect gasoline stations and propane facilities. He also inves-

tigated incidents such as fuel oil spills and assisted the Office of the Fire Marshal if fuels were

suspected of contributing to an incident. In 2003 or 2004 he became the regional supervisor for

South Western Ontario and had a number of people reporting to him. In 2007 he took on the role

of technical specialist and his duties included dealing with incoming consumer complaints and

inquiries, interpreting the code for consumers and liaising between fuel operations and the In-

formation System (IS) department to implement any regulatory changes that were required to the

inspection processes.

[108] He was also in charge of dispatching TSSA employees if there was a fuel spill. Among

the employees reporting to him there were three training and certification advisors who dealt

with the accredited training providers. In order to become a trainer a person would submit their

training material to the TSSA for review and approval. If the material satisfied the training needs

for the particular certificate the applicant would be accredited. The training and certification ad-

visors were responsible for reviewing these applications. The applicant would then attend a

“train the trainer” program.

[109] The TSSA did not keep records of the names of people who have been issued records of

training. The TSSA policy document and “Training Provider Agreement” required the trainers to

keep records of the people who had been trained. The “Training Provider Agreement” outlined

the requirements for a training provider to be authorized to provide the propane plant operator 3

(PPO3) training. In the past the TSSA had conducted audits to ensure that the trainers were keep-

ing records. The records of training (ROTs) were valid for a three year period from the date of

the training.

[110] Mr. Berkel identified a document shown to him as the “Policy and Procedures for Gas

and Oil burner Technician Certification”. There is a reference to the record of training within the

document. This document would be provided to accredited training providers. Mr. Berkel ad-

vised that TSSA regulation 215 sets out the certification and training requirements for the fuels

industry. The TSSA accredits training providers who teach the (PPO3) course introduced on the

previous page. The TSSA does not do any training for the PPO3 certificate.

Martina Collingridge

[111] Ms. Collingridge was employed by the Ontario Propane Association for 12 years from

— 27 —

July of 1997 to January of 2010. The OPA no longer exists but was a non-profit association that

assisted propane companies and individuals by speaking on their behalf to the TSSA regarding

relevant regulations. The association had individual members and corporate members. To be-

come a member one would fill out an application and pay a membership fee.

[112] The OPA provided services such as an emergency response assistance plans and training

programs. Sunrise Propane was one of the first members to join the OPA and ended its member-

ship in 2008. There was a board of directors and they would meet two or three times a year.

[113] The OPA had two employees; Ms. Collingridge and Mr. Chartier, who was the President

and secretary. Ms. Collingridge started at the OPA as an administrative assistant and then be-

came an executive assistant/office manager. Generally her duties involved typing letters and

memos and putting out newsletters. Later, in 1997 they took on issuing the ROTs. The TSSA

was established in 1997 and took on the major responsibilities but downloaded that function. The

Ministry of Consumer and Commercial Affairs had administered the training previously and in

1997 the OPA, other companies and individuals took it on.

[114] The OPA established workbooks and exams, which were approved by the TSSA, and

kept a database of all people who were trained. A software program called “Lotus Approach”

was purchased and Ms. Collingridge designed and created the database using it. The workbooks

contained written instruction and there was an exam at the end. Hands-on instruction was also

required. Members of the OPA who were qualified to train were the trainers. The workbooks

were updated on a regular basis as there were often changes to the regulations. Ms Collingridge

had no part in developing the content of the workbook; she was only required to input the up-

dates. It was suggested to Ms. Collingridge that there was nothing in the workbook as to what

one would do if they saw an unknown cloud coming from a location. She was not able to answer

the question.

[115] Trainers would call and ask for the number of workbooks they needed. For those people

who passed the exam, which required a mark of 75%, the exams were sent back to the OPA and

after double checking the score and ensuring that all required signatures were on the document

she would input the first and last name of the person, their address, the course, an ROT number,

an issue date and an expiry date. Ms. Collingridge would then print the ROT and send it to the

individual. The first name and last name were entered into two different fields. The ROT number

would automatically be populated on the document when Ms. Collingridge started a new ROT.

[116] Once the document had been created she would file it numerically based on the ROT

number. The files were at the OPA office which had been located at 1155 North Service Road in

Oakville. The ROT was a wallet-sized card and contained the holder’s name, expiry date, ROT

number and license type. The OPA logo was also on the license along with the address and

phone number of the OPA. The expiry date would be three years from the date of issue. General-

ly the ROTs would be mailed out; however, an individual could come and pick one up if they

made that request.

— 28 —

[117] Ms. Collingridge was not the only person who did the data entry for ROTs as there were

a couple of part-time people who would assist. Over the years she had three people that had as-

sisted her. Two of those workers were there for less than a year and the third had been there for

one year when Ms. Collingridge left. Mr. Chartier also had access to the database, and anyone

who knew how to operate the software could get into the database.

[118] If Ms. Collingridge was searching for a particular person on the database to determine if

they held a license she would conduct a search using the last name of the individual and would

enter it into the relevant field. In this case, after the explosion had occurred, she was asked to see

if there was a person by the name of the deceased, Parminder Saini, in the database. She did not

find the name in the database. In cross-examination Ms. Collingridge indicated that she was not

sure if she was given the name “Singh” to search as a family name.

[119] Ms. Collingridge started with the last name Saini and tried a number of different letter

combinations for the name. She also put the name Saini in as a first name in case the names had

been reversed. She also did a search using the first name and last name and tried different spell-

ings of that name as well. She spent at least ten or fifteen minutes searching for the names in the

database.

[120] The database itself was never purged but the exams were only retained by the OPA for

three years. She didn’t know exactly how long after the explosion she was asked to do the search

but guessed that it was a few weeks. The search she conducted was a database search. She did

not physically go through all of the exams as there were thousands.

[121] The OPA also provided an emergency response assistance plan (ERAP) to its members.

Any company transporting propane over the highways within Canada was required by a

Transport Canada regulation to have an emergency response assistance plan. The OPA devel-

oped a plan that was approved by Transport Canada and were able to offer it to their members.

The plan was based on mutual aid. If one member had an incident other members would help

regardless of whether or not they were competitors. OPA members were not required to be in-

volved with the plan.

[122] If an OPA member wanted to become a member of the plan they would make that re-

quest. The plan was sent out to all members who wanted to be involved. The plan was titled

“Transportation ERAP” and was assigned the number 2-1672 by Transport Canada. The docu-

ment always had the word “draft” at the top as they considered it a live document that was al-

ways updated. Sunrise Propane was part of this plan from the beginning until after the incident in

2008.

[123] If an incident occurred the affected member would call the 1-800 number on the first

page of the plan that was operational 24 hours a day and seven days a week. The phone number

was owned by the OPA; however, the phone was answered by an answering service.

— 29 —

[124] The OPA also conducted audits and in June of 2008 an audit was conducted at Sunrise

Propane and it passed the OPA’s ERAP plan. There had been an earlier audit in April of 2008

where there had been a number of deficiencies.

Michael Martin

[125] Mr. Martin has been in the propane business for several years. For the past 14 years he

owned his own business named Promar Petroleum. He offers propane handling training, propane

consulting, site development and also assists sites acquired suppliers.

[126] Mr. Martin first began doing business with the defendants when they were operating a

single gas station. His primary contact person was Mr. Ben-Moshe. The main service he provid-

ed was propane training. However, he would also connect Sunrise Propane with future customers

who wished to install a propane retail site. Sunrise Propane would enter into a contract with the

other company, supply the capital and equipment for the site as well as the propane. Mr. Martin

would get a commission on the propane sales. In his experience the defendants never asked him

to cut corners when it came to safety. He did not work exclusively for the defendants as he pro-

vided similar services for other companies.

[127] Mr. Martin testified that anyone who is handling propane requires training. The most

common propane course is the Propane Plant Operator 3 (PPO3). This course is provided to in-

dividuals who work at retail facilities whether they are filling cylinders or automobiles and is a

requirement under Ontario Regulation 215/01. There is another course that teaches only cylinder

filling but most people take the PPO3 training. Mr. Martin offered both these courses and others.

Over the years Mr. Martin has trained hundreds if not thousands of people how to handle pro-

pane.

[128] Mr. Martin trained people at the 54 Murray Road site. He would teach the course using

the PPO3 workbook that is provided by the Ontario Propane Association. An examination comes

with the workbook and it is always the same examination. There is also an affidavit in the work-

book that must be signed by the student and the examiner regarding hands-on training.

[129] Mr. Martin would provide his students with a copy of the workbook. There are two com-

ponents of the course, classroom theory and hands-on practical training. When he was doing

training at 54 Murray Road he would teach the classroom component at the office on site first,

then he would take students to the equipment on site for the hands-on training. Mr. Martin esti-

mated that the average person would complete the course in four to six hours.

[130] The application for a ROT was also contained in the workbook package. After complet-

ing the training a person would receive a temporary ninety day license. The exam would be for-

warded to the OPA and the OPA would issue the actual ROT, which is a wallet-sized certificate

with the individual’s name on it, the course taken, license number and an expiry date. Generally

the ROT would expire after three years from the date it was issued. During an inspection any

employee handling propane would be expected to produce the ROT as proof that they are li-

— 30 —

censed. On certain occasions Mr. Martin would teach more than was required in the workbook

depending on the circumstances of the client’s yard.

[131] Safety training is part of the theory and hands-on training and it includes identifying in-

ternal safety control valves, emergency shut-offs, the fill point and the pressure relief valve of a

tank, the fusible link and all components of the tank. There would also be training on how to

identify a leak and how to control it. That would include training as to what one would do if the

leak could not be controlled. The trainee would be instructed to call their manager, supervisor or

9-1-1 if appropriate. Basically, the trainee is taught how to initiate and execute the emergency

response plan which could require ventilation of the area or evacuation.

[132] In cross-examination Mr. Martin explained that if there was a leak you would be able to

smell the propane. If you didn’t smell it you would hear the leak as well as see the leak. Mr.

Martin was asked what one would do if they didn’t know there was a leak and Mr. Martin said

there would be nothing to do.

[133] The safety training would also include instruction as to what to do if a fire broke out at a

plant. Mr. Martin said the first rule is to contain the propane flow. The first step would be to

close the Internal Safety Control valve (ISC valve) on the tank, hit the emergency shut-off and

then call 9-1-1. The emergency shut-off would stop the power to the entire plant and people

would be evacuated.

[134] Mr. Martin did not keep records of the people he trained. After the explosion he was ap-

proached by a number of people asking whether or not he had trained the deceased, Mr. Par-

minder Singh Saini. When he was asked he did not recognize the name. He contacted the OPA to

see if that name was in their database and was told that it was not. Mr. Martin’s main contact at

the OPA was Martina Collingridge. Mr. Martin’s view was that he probably did not train him.

[135] Mr. Martin was directed to look at item one on the “Fuel Safety Inspection Report” dated

November 9, 2006 which was prepared by Mr. Heyworth. Mr. Martin had not seen this docu-

ment before. However, he agreed that the deficiency noted was that an employee named Ihor

Shalyhin was working without an ROT. Mr. Martin’s attention was then drawn to an “Applica-

tion for Record of Training” which was dated November 10, 2006 with the name Ihor Shalyhin

as applicant and name Mike Martin as examiner. Mr. Martin identified the document and his sig-

nature on it. Mr. Martin also noted that his OPA identification number was on the document. Mr.

Martin did not recall how he was approached to do this particular training session.

[136] Mr. Martin was directed to photocopies of three cheques from Ex. 1 volumes 1-4 tab 42J.

The first was a photocopy of a cancelled cheque payable to Promar Petroleum Inc. in the amount

of $10,876.61 for services rendered; the second was a photocopy of another cancelled cheque

dated October 7, 2008 payable to Promar Petroleum in the amount of $2,983.21. Mr. Martin said

that the October 7, 2008 cheque would have been for commission on retail sales at the retail sites

and the third cancelled cheque was dated October 24, 2008 payable to Promar Petroleum Inc. in

the amount of $3,746.18 which was also for commission on retail sales. Mr. Martin was not sure

— 31 —

if these cheques were for services rendered and commissions before or after the explosion as it

took months to be paid as Sunrise Propane was constantly behind and didn’t pay him on a regu-

lar basis. All three of the cheques had the name “Sunrise Propane Energy Group Inc.” written in

the top left corner.

[137] Mr. Martin was asked if he was familiar with the following company names; 1376229

Ontario Ltd., Sunrise Propane and Petroleum, Sunrise Propane Industrial Gases and replied that

as far as he was concerned he referred to them as Sunrise Propane. To him they were all the

same.

Brent McIntyre

[138] Mr. McIntyre has been involved in the propane industry for 23 years. His work in the in-

dustry was restricted to finding customers for the bulk trucks to deliver to. He started working

with Sunrise Propane in 2005 as a business development manager and his boss was Sean Ben-

Moshe. Mr. McIntyre also knew Gary Mizlitsky, who ran a separate company, Discount Pro-

pane, out of the Murray Road site. While working for the defendants Mr. McIntyre was on the

road most of the time going to businesses and trying to increase the defendants’ sales. He would

attend the Murray Road site about two times a week and never saw Mr. Ben-Moshe take any

shortcuts in terms of safety.

[139] Mr. McIntyre was also qualified to train people in handling propane; however, since the

explosion his training qualifications have been revoked. The training was offered as an extra ser-

vice to new customers whose employees hadn’t been trained. Most of the training Mr. McIntyre

did was on construction sites instructing people on how to handle portable propane heaters. He

would attend at the work site and train the workers there. Mr. McIntyre was trained to be an in-

structor by Mr. Martin. Mr. McIntyre acknowledged that in addition to the OPA, there were oth-

er organizations that were able to issue licenses or certificates to people who had been trained in

propane, such that the OPA didn’t have a monopoly on training.

[140] The materials used by Mr. McIntyre to train people were the same that Mr. Martin used

and came from the now-largely defunct OPA. The materials included exams and videos. After

successful completion of the course Mr. McIntyre would submit the completed exam to the OPA

and they would issue a ROT. Mr. McIntyre was not in the habit of keeping photocopies of the

materials he sent the OPA. As far as Mr. McIntyre was concerned his involvement with training

an individual ended when he sent the completed exam to the OPA. He did not train employees of

the defendants’ and did not train Mr. Parminder Saini.

[141] After the explosion, Mr. McIntyre initially said that he had stopped working for Sunrise.

However, in cross examination Mr. McIntyre was shown three cheques from various dates be-

tween August 15^thand September 26^th2008 made out to Mr. McIntyre from Sunrise Propane.

They ranged in amounts up to $2,200.00. After being shown the cheques Mr. McIntyre said he

had helped wrap up operations and organized what was left of the business after the explosion.

— 32 —

[142] The 54 Murray Road site was the head office and all of the documentation at that site had

been destroyed. He worked very long hours during this time to the end of September of 2008 to

satisfy customer needs as best as the company could after the explosion. Mr. McIntyre filled

empty cylinders from another site on Rexdale Boulevard and returned them to the customers.

[143] Mr. McIntyre was not aware of Sunrise making any bulk deliveries to end user customers

after the explosion, but he did remember seeing a Carling Propane truck fill up from one of Sun-

rise’s vertical tanks at the Rexdale Blvd site. During the period of time where Mr. McIntyre con-

tinued to serve pre-existing customers after the explosion, he gave himself his own instructions

and made his own decisions.

[144] Mr. McIntyre considered Sunrise Propane, Sunrise Propane & Petroleum and Sunrise

Propane Industrial Gases to all be the same company and identified Carling Propane and Prime-

max Energy Inc. as propane distributors (Primemax a bulk distributor). Carling Propane was

hired after the explosion to service pre-existing customers because all of the Sunrise trucks were

destroyed in the explosion.

The Explosion August 10, 2008

Abdul Chaudry

[145] The transcript and DVD of an interview conducted by Joseph Pate of the Ministry of La-

bour on May 27, 2009 of this witness were filed as exhibits in this proceeding. On August 10,

2008 in the early morning hours Mr. Chaudry was operating a taxi for Diamond Taxi. He was

working a 12 hour shift from 5 p.m. on August 9, 2008 to 5 a.m. on August 10, 2008. The cab he

was driving used propane and gasoline as a fuel source.

[146] At approximately 3:30 or 4 a.m. on August 10, 2008 Mr. Chaudry drove to Sunrise Pro-

pane on Murray Avenue to fill up the propane tank. He usually went to that location as the price

was good. When he drove into the yard he saw several trucks. He thought that there were three

trucks and one of them was running with a person sitting in it. He was not able to provide a de-

scription of the man. Mr. Chaudry did not notice any smoke or fog in the area when he was there

and didn’t smell anything unusual. Mr. Chaudry was aware of what propane smells like.

[147] Mr. Chaudry drove up to the propane filling station and the attendant was in the kiosk

speaking with someone on the phone. The attendant came out of the kiosk and was still speaking

with someone through a blue tooth device. Mr. Chaudry asked the attendant to fill up the propane

tank, and the attendant did so. They had some conversation about the placement of the propane

tanks and Mr. Chaudry drove off. Mr. Chaudry did not see any other taxis in the yard while he

was there and did not hear or see an explosion.

— 33 —

Brian Bittles

[148] Mr. Bittles lived in a house located at 176 Spalding Road, across the street from the Sun-

rise bulk propane plant. On August 10, 2008 he went to bed at approximately 1 o’clock in the

morning. His wife and two daughters had gone to bed earlier in the evening. Just after three in

the morning a noise woke him up and he went to the window in his bedroom and opened it. He

heard a very loud noise coming from across the road where the Sunrise propane plant was locat-

ed that sounded like a jet taking off. He looked towards the Sunrise plant and couldn’t see the

fence that he knew was there because fog was covering it. The fog was close to the ground.

[149] By the time Mr. Bittles opened his window there was, what he termed, a “giant explo-

sion”. Something hit him in the face, the window broke and parts of the ceiling came down. He

realized that he needed to get his family out of the house quickly and took his wife and daughters

and drove away in their vehicle to his wife’s parents’ house to tell them to wake up. He and his

family were not able to return to their home for three weeks.

Felipe De Leon

[150] Mr. De Leon was contracted by Sunrise Propane to haul propane in August of 2008. Mr.

De Leon had worked in the propane industry for a number of years. Prior to working for Sunrise

Propane Mr. De Leon had been working as a forklift operator for a propane company in Missis-

sauga for approximately six months. Before that he had worked with propane in the Philippines

where he had his own business distributing cylinders of propane that were filled by someone

else.

[151] When Mr. De Leon came to Canada he obtained an AZ licence which allowed him to

drive large trucks. A friend recommended him as a driver to Sunrise Propane. This fellow was an

independent contractor who drove trucks for them. Soon after Mr. De Leon began his training

with Sunrise he completed safety exams at the Sunrise offices after reviewing books that had

been given to him. He was given one week to review the books and then he wrote the exam in

one day. He didn’t recall who his instructor was.

[152] Mr. De Leon was taught how to do truck-to-truck transfers and all of the safety measures

required for those transfers. The units he trained on for the truck-to-truck transfers were unit 1

and unit 861. Again, Mr. De Leon could not recall who had trained him. Mr. De Leon’s recollec-

tion was that he spent approximately one month of training regarding truck-to-truck transfers, but

then said this period of time also included the time he spent riding along in the truck with a driv-

er named Mr. De Castro. Mr. De Leon rode along with him five days a week. He could not re-

call who it was that trained him but he said that it was someone who worked for Sunrise.

[153] The main truck Mr. De Leon trained on and drove was unit 1. Unit 1 was used primarily

for making deliveries of propane around the city. There were other trucks he did use, but unit 1

— 34 —

was the truck he was most familiar with. On a typical day Mr. De Leon would start anywhere

between 6 a.m. or 7 a.m. and when he arrived at work he would go to a kiosk as the list of his

deliveries would be posted there. Once he retrieved the list he would go to the truck and make

sure it was safe and get started with the deliveries. Once the deliveries had been completed it was

his practice to call the dispatcher, Gary Mizlitsky, to see if there were any other deliveries to be

made.

[154] For the most part Mr. De Leon worked the day shift as the other driver could not work

during the day. In cross-examination he agreed that most of the time he would work one day on

and one day off. The truck would always be full when Mr. De Leon started his shift as it was the

practice for each driver to fill up the tank after their shift had been completed.

[155] On some occasions, when the regular driver was not available, Mr. De Leon would drive

a cargo liner to Sarnia and back. Mr. De Leon was required to take specific training before he

was allowed to do this. This training took place in two different locations in Sarnia. Mr. De Leon

could not recall when he had taken the training or how long the course was. However, he did re-

call receiving training on safety procedures in both of the training sites. For instance, he recalled

that there were buttons inside and outside of the kiosk that you could push to shut down the pro-

pane if there was a leak in the hose. Mr. De Leon was given certificates after he had completed

the various types of training but he could not recall what they were given the passage of time.

[156] Mr. De Leon saw Mr. Ben-Moshe at times, but not very often, because he was out on the

road. Mr. Ben-Moshe did not ever correct anything he had done and he did not see him correct-

ing anything anyone else had done.

[157] Mr. De Leon understood that the name of the company was Sunrise Propane. While he

was working with Sunrise Propane he was occasionally asked to drive trucks for Discount Pro-

pane; however, that was only on three or four occasions. Mr. De Leon believed that he was an

employee of Sunrise Propane and said that he was paid by cheque. In cross-examination Mr. De

Leon agreed that he was not an employee, but was a self employed independent contractor who

invoices the company. He charged $18.00 per hour for his services.

[158] After Mr. De Leon started driving with Sunrise Propane he did not receive any further

training. He was also not provided with any performance evaluations. At the time of the explo-

sion Mr. De Leon thought he had been driving for Sunrise Propane for one year. In cross-

examination Mr. De Leon recalled, after being referred to a previous statement, that he had ap-

plied to Sunrise Propane in November of 2007 and had completed several training courses in

December of 2007 and January of 2008. Mr. De Leon also recalled that he was riding along with

other drivers for three or four months before he started driving the trucks on his own. During that

entire time period Mr. De Leon was not being paid by Sunrise and was continuing his work as a

fork lift operator. Mr. De Leon agreed in cross-examination that it might have been during the

month of April that he starting driving the Sunrise Propane trucks on his own.

— 35 —

[159] On the evening just prior to the explosion Mr. De Leon started his evening shift at 9:00

pm and came in through the gate, which he said was always open. When he arrived Mr. Saini

was on site. He did not know Mr. Saini’s name on that day but came to know it after the explo-

sion. Mr. Saini was loading propane into taxis. Mr. De Leon had never loaded propane into taxis

at the Sunrise location as he was told he was not allowed to do it.

[160] Mr. De Leon went to the kiosk and took the list of the deliveries and then did a circle

check of the truck, unit 1. He proceeded to make deliveries to gas stations at Airport Road, Der-

ry Road and Martin Grove Road. Once he had completed those deliveries he called Gary

Mizlitsky and was instructed to go to another location in Guelph. He called Gary Mizlitsky again

and was told to bring the truck back to the yard and to fill it up with propane. The maximum ca-

pacity of unit 1 was 42,000 litres and Mr. De Leon estimated that it was half full when he arrived

back at 54 Murray Road at approximately 3 a.m. He noticed that Mr. Saini was there when he

arrived along with two taxi cabs.

[161] Mr. De Leon pulled his truck, unit 1, up beside unit 861. He put on his hand brake and

did a circle check of his truck to make sure that it was safe. Mr. De Leon made sure that the

lights on both trucks were off to ensure that no spark could go off and then put blocks against the

wheels so they would not roll. The next step was to get the hoses to check them for leaks and

then attach them one by one. If there was a leak in any of the hose he would have expected to see

white smoke coming out and he did not see that. He would also have expected to hear a hissing

sound if propane was leaking and he did not hear that.

[162] Mr. De Leon connected the two hydraulic hoses. Hydraulic hoses contain hydraulic oil

and are connected to the power-take-off (“PTO”) in the cab of the truck; it supplies the power to

pump the liquid propane from one truck to the other. Once that had been completed Mr. De Le-

on looked for the liquid and vapour hoses and connected them. The liquid propane hose is larger

than the vapour hose. He connected the hoses to fittings on the sides of the truck and then

checked all of the openings to ensure that there was no leak and then went to the cab of the truck

to open the PTO. The PTO is located in the middle of the cab.

[163] After the PTO was operating he went back to check the hoses and to watch the transfer of

propane until the truck, unit 1, was filled. Mr. De Leon said that it is necessary for an operator to

watch the process to ensure that the truck did not get overfilled. He advised that he was able to

tell when the truck was 85% full by looking at the breather and gauges. When the tank is 85%

full the breather protrudes from the truck and a small amount of white smoke is emitted. The

process took approximately 30 minutes. Mr. De Leon advised that once you see the smoke it is

necessary to close the breather and then turn off the PTO to stop the liquid from flowing.

[164] At this point in the process the engine was still running. Mr. De Leon removed the hy-

draulic hoses and had planned to close the valves when he saw smoke. At first he thought the

— 36 —

smoke was fog because it was early in the morning. He estimated the smoke to be about 60 feet

away and said that it was very close to the ground (1 to 1.5 feet). At this point he had not closed

the valves on the tankers. He testified that his idea was to go back to them but he wanted to know

what was going on. Mr. De Leon agreed in cross-examination that he could smell propane but he

said the entire facility smells like propane so that didn’t alert him to anything in particular.

[165] Mr. De Leon said it would have taken about three minutes to close the valves because

there are four of them, two in unit 1 and two on unit 861. Mr. De Leon was not aware of any oth-

er way to close the valve in an emergency situation. He said he was startled and shocked and did

not know what to do. Mr. De Leon was not aware of any other location on unit 861 that would

allow him to close the valves.

[166] In cross-examination counsel for Sunrise suggested that Mr. De Leon forgot that he had

been shown that there were emergency manual activation buttons on the tanks. Mr. De Leon said

he really did not remember because too much time had gone by. He had never had any problems

with unit 1 in the past. In cross-examination Mr. De Leon recalled that unit 861 did have emer-

gency shut-offs, but said that he did not touch those because they were not the problem. He

agreed with counsel in cross-examination that it was his confusion that made him forget about

the emergency shut-offs. He also said that in his confusion he forgot all of his training. In re-

examination Mr. De Leon added that he did not think that the point of the problem was with the

trucks.

[167] Mr. De Leon said he ran quickly towards the man that was in the kiosk to tell him about

the smoke he had seen and to ask him if he knew what it was. Mr. De Leon told Mr. Saini, who

was inside the kiosk, about the smoke and they both went outside to look at it. Mr. Saini told Mr.

De Leon that he did not know what it was. Mr. De Leon said that the cloud of smoke started get-

ting bigger and after five minutes they heard a hissing sound in the distance and then a small ex-

plosion.

[168] According to Mr. De Leon he told Mr. Saini not to go towards the smoke as they would

not be safe there but Mr. Saini ran towards the sound. In cross-examination Mr. De Leon agreed

that he has always said that he thought the smoke was coming from the north.

[169] Mr. De Leon ran towards the fence when he heard the sound of an explosion and climbed

up on some 100 pound cylinders and jumped over the fence and fell onto his stomach. Mr. De

Leon was able to get up and ran towards Murray Road. While he was running and climbing he

could feel heat but he could not see the fire. Mr. De Leon saw a police officer and called him be-

cause something hit the back of his head when he fell and he was bleeding. While he was talking

to the police officer he saw the big explosion and described it as a “ball of fire”. The police of-

ficer took him to emergency medical personnel who were located a short distance away.

— 37 —

[170] Mr. De Leon agreed in cross-examination that safety was very important to Sunrise Pro-

pane and that he felt safe while he was working at the yard and when making deliveries. Mr. De

Leon knew that even a small leak could be dangerous and that he had to report it.

Evidence as to what Caused the Explosion

James Bennett

[171] Mr. Bennett was qualified as an expert in the investigation of the origin and causes of

fires and explosions. Mr. Bennett holds an engineering degree and has been certified by the Na-

tional Association of Fire Investigators as a fire and explosion investigator and is also an instruc-

tor for the same organization. Mr. Bennett has testified five times as an expert witness.

[172] Mr. Bennett has worked with the Office of the Fire Marshal as a protection engineer since

October of 2005. His role is to provide technical support to investigators on investigations of ex-

plosions and fires and to attend the field, examine exhibits and review witness statements. The

Office of the Fire Marshal is charged with fire safety in the province of Ontario. Since 2005 Mr.

Bennett had been involved with the investigation of 227 fires and explosions and of that 22 were

explosions.

[173] Prior to working for the Office of the Fire Marshal Mr. Bennett had worked as a consult-

ing engineer for Rochon engineering, a private engineering firm, for seven years. While there he

was involved with 1200 investigations, 40 of which were explosions.

[174] Mr. Bennett’s role in the investigation of the Sunrise Propane explosion was as lead en-

gineer and he was tasked with writing the report with the assistance of two engineers. His in-

volvement began when he was contacted on August 11, 2008. He arrived on scene on August 12,

2008 and was working with three other engineers and numerous investigators. It took almost two

years to gather all of the data required for the report. Mr. Bennett’s opinion was based on an ex-

amination of a number or sources including video footage, eyewitness accounts and simulations.

(i)

Cause of the explosion

[175] Mr. Bennett’s opinion was that the cause of the explosion was an accidental release of

propane at the site resulting in a vapour cloud of propane being ignited. This ignition resulted in

additional containers of propane on site exploding. This caused the fire to burn for several hours.

After reviewing all of the evidence and conducting computerized simulations it was his opinion

that the source of the propane leak that caused the explosion was the tanker identified as unit

861. Mr. Bennett was able to narrow the location of the leak on unit 861 to two possibilities; ei-

ther the hose used to transfer the liquid propane or the flexible hose that was part of a bypass for

the tank pump. All other possible leak sources were analyzed and unit 861 was the only tank on

the site that had enough propane in it to cause the explosion. Unfortunately he and his team were

not able to recover the flexible hose. In cross-examination he agreed that this could, most likely

— 38 —

be characterized as a mechanical failure with respect to both the hose and the by-pass system.

Mr. Bennett was able to determine that the hose on unit 861was manufactured sometime after

December 2006 by looking at the mill stamp. The pump bypass components were never recov-

ered.

[176] Liquid propane is stored in a cylinder at a temperature that is above its boiling point.

Therefore, once propane leaks into the atmosphere it vaporizes and a white vapour cloud would

be seen by anyone in the area. The vapour cloud would be caused by condensation of water and

the transition of the propane from the liquid to a gas state would cause cooling in the immediate

area because the propane absorbs energy during that process. Propane vapour is invisible and

would extend beyond the white vapour cloud. 1 litre of liquid propane would expand into 270

litres of gas; therefore, once it starts to dilute with air the propane gas would cover a large area.

Propane does not have an odour; however, an odorant is added to it to assist with the detection of

leaked propane.

[177] Propane is only flammable in a certain range when mixed with air. Commercial propane

in Canada is flammable in air between 2.4% and 9.5%. Anything below 2.4 % would not have

enough air to be flammable and anything over 9.5% air, would be too much propane to be flam-

mable. Mr. Bennett was able to determine what the approximate concentration of propane was

on that evening based on the relative humidity that was recorded at the time of the incident and

concluded that it was at the lower limit.

[178] Mr. Bennett was not able to say what the source of ignition was for the explosion. There

were a number of possible ignition sources in the area and the video footage wasn’t detailed

enough to find the first ignition sequence. However, the Fire Marshal was more concerned about

the source of the leak as it was clear that ignition had occurred given that there was an explosion.

He explained that it is common with a vapour-cloud explosion to have multiple possible ignition

sources.

(ii)

54 Murray Road

[179] Mr. Bennett was shown a diagram from page 189 of his report - figure 242. This diagram

was created by Mr. Bennett and shows two trucks. One truck is numbered 861 and the other was

unit 1. These were the two trucks involved in a truck-to-truck transfer of liquid propane from

unit 861 to unit 1 just prior to the explosion.

[180] In order to transfer liquid propane from until 861 a pump on the underside of unit 1was

used as the pump on 861 was not working. The pump is utilized to pump the liquid through a

liquid transfer hose into unit 1. The vapour hose shown on the diagram connects the vapour

space of the two tanks allowing the pressure between them to equalize, making it easier to trans-

fer the liquid.

— 39 —

[181] The pump on the underside of unit 1 was driven by a hydraulic power take off (PTO).

The PTO is driven by the engine of the truck; therefore the engine has to be running during the

transfer. The PTO had a flex line that could be used to attach it to another trailer. The flex line

would typically be connected to the front area of the trailer. The pump itself had an internal relief

valve. This part of the pump had a preset pressure which allowed liquid to re-circulate if an oper-

ator couldn’t pump any more liquid into the intended truck. The internal relief valve would let

the excess propane back into the truck that was pumping the propane.

[182] The internal relief valve and the hosing between it and the tank of unit 1 were not recov-

ered after the explosion; however Mr. Bennett was of the opinion that it was a possible source of

the leak. He explained that if the pump was left running and some blockage occurred, or if there

was an increase in pressure, there could have been be a failure in the hose breaking it and caus-

ing it to leak propane.

[183] The tanks on both unit 861 and unit 1 had emergency manual shut-offs. According to the

Canadian Standards Association these shut-offs, are to be located on the diagonal ends of the

trailer and are connected to the valves. Mr. Bennett attended at Weldex, a manufacturer, which

specializes in bulk propane transportation and storage vessels. An employee demonstrated how

the emergency shut-offs work. Once the emergency shut-off is activated it shuts off all of the

valves with one action, stopping any significant leak of propane. There could be some leakage

but not a substantial amount.

(iii)

The Propane Sources that were ruled out

[184] A number of other possible sources of the propane leak were examined. There were a

number of 100 pound cylinders on site that had the capacity to hold 24 USWG. That was the

largest cylinder type on the Sunrise site. That size cylinder did not have enough propane to cause

this type of explosion so those cylinders were eliminated as possible sources of the leak.

[185] Another truck, unit 90, was also examined. This truck sustained a mechanical failure dur-

ing the explosion and was propelled into the air in a northward direction. All of the valves on the

unit were closed with dust caps in place and there was no propane in it. Mr. Bennett spoke with

witnesses who advised him that this truck was down for repairs and did not have any propane in

it, therefore it was eliminated as a possible source of the leak.

[186] Unit 3, another truck, was also examined on site. All of the valves were in a closed posi-

tion and all of the connectors had dust caps on so there was no offloading of the propane at the

time of the explosion. There was a perforation, but there was no indication of a catastrophic leak.

Witnesses also advised him that there was no propane in this unit.

[187] Two bobtail trucks (smaller trucks used to haul propane) were also examined. Mr. Ben-

nett eliminated both of these trucks as possible sources for the leaks as there was still propane in

— 40 —

them that had to be flared off by the emergency responders. If there had been a leak they would

not have had any propane left in them.

[188] Unit 2, again a truck, was examined as a possible source. It was parked just south of the

two 2,000 USWG tanks. All of the dust caps on that unit were closed and it still had propane in

it. Tide lines were seen on the outside of the unit. These are lines of demarcation caused by ex-

posure to fire. The liquid propane absorbed the heat more easily than vapour and a line was cre-

ated that is representative of the liquid level while the fire was burning. Unit 2 was eliminated as

being the possible cause of the fire.

[189] Unit 1 was considered in Mr. Bennett’s search for the source of the leak. This unit was

torn open on the top and was flipped upside down. The container had sustained a boiling liquid

expanding vapour explosion (BLEVE). The BLEVE of this container is shown later on in the

video footage taken from the Federal Express video camera. Mr. Bennett was of the opinion that

unit 1 could have contributed a minor amount of propane to the initial explosion. Mr. Bennett

was able to observe lines of demarcation that indicated that the container was at least 82% full at

the time it was exposed to fire. That would mean that only 3% of the gas could have leaked, giv-

en that tanks are only filled to 85%, and that would not be enough propane to cause this type of

explosion.

[190] Mr. Bennett and his team conducted simulations using this amount of propane and were

not able to recreate the same type of explosion. The internal combination valve from unit 1 was

recovered and was closed. The body of the valve was fractured and Mr. Bennett advised that it

would have closed when it was fractured. He was unable to determine whether it had been closed

or open at the time of the explosion from his examination of it. The only information that he had

was from the operator, Mr. De Leon, that he had left it open. Two other valves from unit 1 were

located. The valve on the east side of the tanker was open and the other one was found in the

closed position.

[191] The 30,000 USWG tank was found on scene and was intact. Witnesses indicated that

there was no propane in the tank.

[192] Unit 861 was examined and it was determined that it was the source of the leak based on

their examination, witnesses accounts, simulations and the examination of the videos. It was the

only remaining tank on the site that had enough propane in it to cause the explosion and there

were no tide lines showing a level of propane in the tank at the time of exposure to fire.

[193] The two inch transfer hose from unit 861 was recovered at the site and was submitted to

the Centre of Forensic Sciences for a detailed analysis; however, they were unable to provide any

information about the status of the hose prior to the explosion.

— 41 —

[194] In order to determine how much propane would have been available in unit 861 Mr. Ben-

nett and his team received a bill of lading and used information from witness accounts and de-

termined that it was anywhere from 23 to 34% full (4,200 USWG to 6,100 USWG).

[195] One of Mr. Bennett’s colleagues ran hundreds of simulations based on the amount of

propane remaining in unit 861 leaking at 250 gallons per minute (that was the discharge capacity

of unit 861) and determined that after 2½ to 3½ minutes a vapour cloud was created similar to

that observed by Mr. Brian Bittles.

[196] Mr. Bennett and his team knew that there was a narrow time frame for the development

of the vapour cloud seen by Mr. Bittles because there was a taxi cab driver who had been at the

Sunrise site 14 to 15 minutes prior to that time. They interviewed the cab driver and he saw noth-

ing unusual.

(iv)

Video footage

[197] Mr. Bennett and his team were able to locate several videotapes of the explosions which

assisted him in determining the cause. Video footage was obtained from several sources includ-

ing an external camera from a Federal Express office located 800 metres south of the Sunrise

site, two schools, the Bombardier company and YouTube. The video was from closed circuit tel-

evision video recordings.

[198] Mr. Bennett looked at all of the videotaped footage and broke the videos down frame by

frame and was able to estimate the speed of the flame front after conducting two dimensional

simulations. He noticed significant flame speed acceleration which led his team to do more anal-

ysis. They were able to estimate how large the fire ball was as they knew the location of the

camera and the location of the sunrise facility. Mr. Bennett testified that when vapour is ignited it

typically travels at slow speeds; however if it encounters significant obstructions it causes the

flame front to distort and accelerate which can cause all of the fuel to ignite at once. In his opin-

ion the flame front did accelerate and all of the fuel in unit 1 ignited at once causing a BLEVE.

By measuring the “tide” line remaining in the tank of unit 1 Mr. Bennett was able to determine

that the tank was 82% full at the time it exploded.

(v)

Atlas Foundry Incident - October 6, 2007 Tacoma Washington

[199] As part of their research Mr. Bennett and his team reviewed an incident that occurred on

October 6, 2007 in Tacoma Washington where there was a leak in a liquid transfer hose on a

cargo liner that was travelling on a highway. There was an explosion and the driver was killed.

Images of the cargo liner before and after the explosion were captured on video. A white cloud

of condensed vapour could be seen just prior to the explosion. This cloud completely enveloped

the cab of the truck before the BLEVE. The vapour ignited 32 seconds after the leak and the fuel

burned for 7½ to 8 minutes. The investigators found that the propane had continued to leak after

— 42 —

the vapour cloud ignition. In the Sunrise incident Mr. Bennett and his team were able to calcu-

late that the minimum leak that continued to pump, even though the pump was off, was at least

50 gallons per minute.

(vi)

Vapour Cloud observed by Brian Bittles

[200] Mr. Bennett and his team had information that Mr. Bittles had observed a vapour cloud.

To understand how this happened they did simulations of leaks on site and compared them to the

observations of Mr. Bittles. Mr. Bittles had seen what he called “fog” coming out to the building

area. Using computer software, Mr. Bennett’s team put various leaks on the site and estimated

where the various leak rates would cause this to occur. Then he and his team looked at other pro-

pane containers on site. Unit 2, another truck, had demarcation lines inside that showed the liquid

level at the time of the explosion. After examining all of the containers at the site he was able to

conclude that the only source with enough propane in it to cause the explosion was unit 861.

[201] In cross-examination Mr. Bennett agreed that, among other things, he had relied upon the

statement of the driver of the tanker, Mr. De Leon. Mr. Bennett noted that he and his team would

assess the physical evidence in comparison to what a witness told them. For instance, they were

able to compare the valve positioning physically and were able to confirm that a lot of the manu-

ally manipulated valves were involved. They don’t rely exclusively on what a witness tells them.

Mr. Bennett also agreed in cross-examination that his conclusion is essentially a hypothesis and

agreed that it had been difficult to reach because so much of the evidence had been damaged.

[202] Mr. Bennett also agreed in cross-examination that the incident had been classified by the

Ontario Fire Marshal’s office as being “accidental”; however, in re-examination he clarified that

the only categories used by the Ontario Fire Marshal’s office are “undetermined”, “incindery”,

“purposeful” and “accidental”.

(vii) Ignition of the Vapour cloud

[203] Mr. Bennett was not able to draw any conclusion as to what the caused the ignition

of the vapour cloud as there were many possible sources such as static electricity, a vehi-

cle engine running or sources in adjacent building. His evidence was that it is common

with a vapour cloud investigation to have multiple possible sources of ignition. He was

more interested in finding the source of the leak because without the fuel leak the explo-

sion could not occur.

The Cleanup after the Explosion

Wesley Hicks

— 43 —

[204] Mr. Hicks worked for a company called First Response Environmental which offers

emergency response services for environmental emergencies. He is the Director of Operations

and has held that position since 2010. Prior to that he worked for Hazco Environmental and held

the position of Operations Manager. His duties included dispatching the staff, the fleet and in-

ventory as well as approving accounts receivable. In addition to this he would be the Incident

Commander when there was an environmental incident. Hazco Environmental was a 24 hour a

day, 7 day a week service with a 1-800 number that clients could call at any time.

[205] On Sunday, August 10, 2008 he received a telephone call from his operations supervisor,

Steve Tylliros, advising him that there had been an explosion at the Sunrise Propane site located

at 54 Murray Road in Toronto. Hazco Environmental administered the Ontario Propane Associa-

tion’s Emergency Response Action Plan (ERAP). The plan, or ERAP, was based on mutual aid

of the member companies. If one company had an emergency all of the other companies would

be called upon to assist with the incident. Hazco Environmental had an answering service for

their 1-800 number and provided a staff member who could answer and then deal with the com-

munication between Canutech, (a Canadian government organization that supplies information to

government agencies that need to be notified in emergency situations and private companies). If

it was logical for Hazco to respond they would, otherwise they would coordinate the response.

[206] Later that evening at approximately 11:30 p.m. Mr. Hicks was instructed to go to the

Hazco facility and pick up a fit tester. A fit tester is a piece of equipment that is used to fit test a

person who is going to be wearing an assisted breathing apparatus. The assisted breathing appa-

ratus must be fitted to an individual’s face. The apparatus is fitted with a cartridge that filters out

certain impurities from the air. The Toronto Police wanted to conduct a search of the property to

look for potential body parts as they were still looking for a missing employee and wanted to use

the assisted breathing apparatus while searching.

[207] Mr. Hicks arrived sometime between midnight and 12:30 a.m. on Monday, August 11,

2008. When he arrived he went to the command centre and started fit testing the officers that

were going to be taking part in the search of the area. Mr. Hicks described the site as being “a

mess” and he noticed that the windows of houses had been blown out. While he was walking

around the site he discovered what he thought was asbestos on both sides of the street and on the

street itself. He advised the other agencies on site of this discovery. Mr. Hicks took some sam-

ples and brought them to a lab in Mississauga that morning. The lab confirmed that the material

was transite asbestos that was used in the 1980s for roofing and siding in buildings. Most of the

asbestos found was transite; however, about 20% of it was the friable type of asbestos that can

break apart and get into a person’s lungs.

[208] Mr. Hicks received an email from Ms. Marianne White of the Ministry of the Environ-

ment asking for a plan regarding the clean-up of the asbestos. He had met her the previous day at

the site. Mr. Hicks responded to the email and advised her that the plans had changed somewhat

as the body of Mr. Saini had been discovered.

— 44 —

[209] Mr. Hicks made a telephone call to Mr. Belahov of Sunrise Propane to advise him that

asbestos had been located at the site. Mr. Belahov told him to deal with what Sunrise Propane

was responsible for. Mr. Belahov also made a commitment to have someone come to the site to

sign paperwork and meet with him later that day; however, no one did. Normally, Hazco would

use daily occurrence reports to invoice their customers. The customer would authorize and sign

those documents on a daily basis. By August 13, 2008 Mr. Hicks was getting pressure from other

employees in his organization to get written confirmation from Sunrise Propane that they would

be getting paid.

[210] Mr. Hicks was shown the work Order that was issued by Ms. White to Sunrise Propane

Energy Group Inc. and 2094528 Ontario Inc. on August 13, 2008 and confirmed that Hazco En-

vironmental was capable of doing all of the work that was listed on the Order. At some point,

Mr. Hicks didn’t recall if it was before or after he had seen Ms. White’s Order, he received a tel-

ephone call from a person who said they were a lawyer representing Sunrise Propane. This per-

son asked whether Hazco Environmental would be working on behalf of Sunrise Propane to ful-

fill the requirements of the Order and Mr. Hicks said they would be willing to do that. This per-

son also said that someone would be meeting Mr. Hicks at the site to discuss and sign the docu-

mentation. Mr. Hicks asked who was going to be paying for the cleanup and was told that Sun-

rise Propane’s insurance was going to be paying for it. Mr. Hicks told the lawyer Hazco Envi-

ronmental was looking for a large amount of money upfront, probably approximately

$200,000.00. He was given an insurance broker’s name to follow up with.

[211] Mr. Hicks called the insurance broker and he was told that someone from the adjuster’s

office, Cunningham Lindsay, was going to go to the site and sign the paperwork that Hazco En-

vironmental required. During the conversation Mr. Hicks advised the broker that Hazco Envi-

ronmental’s bill was getting close to the maximum figure and there was a fair bit of work that

still needed to be done. The broker, Mr. Mohotoll, advised Mr. Hicks that there was a very lim-

ited amount of money available regarding environmental liability. Mr. Hicks estimated that the

bill at that point was approximately $50,000.00. No one from the adjuster’s officer ever did

meet with him. Mr. Hicks was trying to reach someone at Sunrise Propane. He had several cell

phone numbers but whenever he called the voicemail boxes were full.

[212] The City of Toronto became heavily involved in the cleanup of the area on August 14,

2008 and hired Hazco Environmental to continue to do the work they had been doing and paid

them for the work that had already been done.

Marianne White

[213] Ms. White is a senior environmental officer with the Toronto district office of the Minis-

try of the Environment. Her responsibilities include responding to complaints and spills. She also

reviews applications that companies make to discharge a contaminant to the natural environment.

She had been in charge of the area which included 54 Murray Road since 2005. Ms. White re-

ceived her designation as a provincial officer pursuant to the Environmental Protection Act in the

fall of 2001.

— 45 —

[214] On the day of the explosion Ms. White was off duty; however, she became involved the

next day, August 11, 2008. When she first attended at the scene at 9:45 a.m. she met with emer-

gency response personnel from the previous day and with provincial officer Michael Stevenson,

who was the emergency response person from the Ministry of the Environment. She was ad-

vised that Team Hazco had identified a suspicious material and was having it tested to determine

if it was asbestos. They updated her as to the activities the Ministry of Environment had been

involved with up to that point. Officer Stevenson accompanied her onto the site.

[215] The site was quite chaotic as there were a number of people from various agencies in at-

tended including Toronto Fire Services, Toronto Police, the TSSA, Toronto Public Health, Team

Hazco and the Ministry of Labour. There was a centralized incident command centre that To-

ronto Fire Services had set up.

[216] Ms. White was determining whether or not there were any issues on site that fell under

the jurisdiction of the Ministry of Environment such as contaminants that needed to be cleaned

up. Ms. White found that the explosion had caused the discharge of debris into the area sur-

rounding the site. She explained that the debris is considered to be waste that needed to be

cleaned up. Ms. White attended at the site on several days after the explosion.

[217] Ms. White had been informed by provincial officer Stevenson that Team Hazco had been

retained by Sunrise Propane and the Ontario Propane Association to respond as part of their

emergency response plan for propane emergencies. She noted after arriving on site that Team

Hazco was doing clean-up work. On August 12, 2008 Ms. White was advised by an employee of

Team Hazco, Mr. Hicks, that he was unsure as to how much longer Team Hazco could continue

with the clean-up as they had not been able to get in touch with officials at Sunrise Propane. This

concerned Ms. White as there were a great number of people that were being adversely affected

by the situation and the clean-up had to happen quickly. However, Mr. Hicks had provided her

with a written clean-up plan in relation to the asbestos that day.

[218] On August 13, 2008 Ms. White issued a Provincial Officer’s Report which is part of the

Order she wrote the same day. The Order was issued to Sunrise Propane Energy Group Inc. and

2094528 Ontario Inc. Ms. White issued the Order to clearly indicate what her expectations were

for the clean-up of the debris and waste that had been discharged from the site as well as the

clean-up of the site. The clean-up was to be conducted in two phases. The site was still under the

control of the Office of the Fire Marshal so phase one involved the clean-up of the residential

area surrounding the site. The Order related primarily to the residential area. Phase two would

start after the completion of the on-site investigation when the property at 54 Murray Road was

released back to the owners.

[219] The reasons for issuing the Order are set out in the Provincial Officer’s Report. The Or-

der was being issued pursuant to sections 157 and 157.1 of the Environmental Protection Act.

For ease of reference the sections read as follows;

— 46 —

157. (1) A provincial officer may issue an Order to any person that the provincial officer reasonably be-

lieves is contravening or has contravened,

(a) a provision of this Act or the regulations;

(b) a provision of an Order under this Act, other than an Order under section 99.1, 100.1, 150 or 182.1 or an

Order of a court; or

(c) a term or condition of an environmental compliance approval, certificate of property use, renewable en-

ergy approval, licence or permit under this Act. 1998, c. 35, s. 16; 2001, c. 17, s. 2 (33); 2005, c. 12,

s. 1 (34); 2009, c. 12, Sched. G, s. 15 (1); 2009, c. 33, Sched. 15, s. 5 (3); 2010, c. 16, Sched. 7, s. 2

(60).

Contravention of s. 14

(1.1) Subsection (1) does not apply to a contravention of section 14 unless,

(a) an Order to pay an environmental penalty could be issued in respect of the contravention; or

(b) the contravention involves a discharge that causes or is likely to cause an adverse effect. 2005, c. 12,

s. 1 (35).

Information to be included in Order

(2) The Order shall,

(a) specify the provision, term or condition that the provincial officer believes is being or has been contra-

vened;

(b) briefly describe the nature and, where applicable, the location of the contravention;

(b.1) in the case of a contravention of section 14 for which an Order to pay an environmental penalty could

be issued,describe the adverse effects that were caused by or that may be caused by the contravention;

and

(c) state that a review of the Order may be requested in accordance with section 157.3. 1998, c. 35, s. 16;

2005, c. 12, s. 1 (36).

What Order may require

(3) The Order may require the person to whom it is directed to comply with any directions set out in the Or-

der within the time specified relating to,

(a) achieving compliance with the provision, term or condition;

(b) preventing the continuation or repetition of the contravention;

(c) securing, whether through locks, gates, fences, security guards or other means, any land, place or thing;

(d) where the contravention is related to the deposit of waste, removing the waste;

(e) where the contravention has injured, damaged or endangered animal life, plant life, human health or

safety, or the natural environment or is likely to injure, damage or endanger animal life, plant life, hu-

man health or safety, or the natural environment,

(i) repairing the injury or damage,

(ii) preventing the injury or damage,

(iii) decreasing, eliminating or ameliorating the effects of the damage, and

(iv) restoring the natural environment;

(f) where the contravention has caused damage to or endangered or is likely to cause damage to or endanger

existing water supplies, providing temporary or permanent alternate water supplies;

(g) submitting a plan for achieving compliance with the provision, term or condition, including the en-

gagement of contractors or consultants satisfactory to a provincial officer;

(h) submitting an application for an environmental compliance approval, renewable energy approval, li-

cence or permit;

(h.1) registering an activity under Part II.2;

— 47 —

(i) monitoring and recording in relation to the natural environment and reporting on the monitoring and re-

cording;

(j) posting notice of the Order; and

(k) if the provincial officer reasonably believes that a term or condition of a renewable energy approval is

being or has been contravened, doing any other thing referred to in subsection 16 (3) of the Ontario

Water Resources Act. 1998, c. 35, s. 16; 2005, c. 12, s. 1 (37); 2009, c. 12, Sched. G, s. 15 (2, 3); 2010,

c. 16, Sched. 7, s. 2 (61, 62).

And

157.1 (1) A provincial officer may issue an Order to any person who owns or who has management or

control of an undertaking or property if the provincial officer reasonably believes that the requirements

specified in the Order are necessary or advisable so as,

(a) to prevent or reduce the risk of a discharge of a contaminant into the natural environment from the u n-

dertaking or property; or

(b) to prevent, decrease or eliminate an adverse effect that may result from,

(i) the discharge of a contaminant from the undertaking, or

(ii) the presence or discharge of a contaminant in, on or under the property. 2005, c. 12, s. 1 (38).

Information to be included in Order

(2) The Order shall,

(a) briefly describe the reasons for the Order and the circumstances on which the reasons are based; and

(b) state that a review of the Order may be requested in accordance with section 157.3. 1998, c. 35, s. 16.

What the Order may require

(3) The Order may require the person to whom it is directed to comply with any directions specified under

subsection (4), within the time specified. 1998, c. 35, s. 16.

Same

(4) The following directions may be specified in the Order:

1. Any direction listed in subsection 18 (1).

2. A direction to secure, by means of locks, gates, fences, security guards or other means, any land, place or

thing. 1998, c. 35, s. 16.

Where Order requires report

(5) Where the Order requires a person to make a report, the report shall be made to a provincial officer.

1998, c. 35, s. 16.

[220] Section 157 refers to contraventions of the Act and section 157.1 refers to preventative

measures. In paragraph two of the report Ms. White set out that she reasonably believed that

Sunrise Propane had;

“Contravened s. 14 of the Environment Protection Act by causing or permitting a discharge of a

contaminant into the natural environment that causes and continues to cause an adverse effect,

which includes injury or damage to property, plant or animal life, harm or material discomfort to

any person, impairment of the safety of a person, rendering any property or plant or animal life un-

fit for human use, loss of enjoyment of normal use of property or interference with the normal

conduct of business.”

[221] On page three of the report in the definition section Ms. White referred to “Sunrise means

Sunrise Propane Energy Group Inc., which is also known as Sunrise Propane Industrial Gases,

and is a tenant of the site.” Ms. White explained that provincial officer Stevenson had provided

— 48 —

her with a business card. She was told that an employee of the company named Murray Patton

had provided the card to Officer Stevenson. The business card had the name “Sunrise Propane

Industrial Gases” on it. Ms. White had also looked up the company’s website which referred to

that name as well.

[222] The Order Ms. White issued was prepared using a template that officers can download.

The Order indicates that the Order is being issued pursuant to s. 157 but does not list s. 157.1.

Ms. White explained that the template at the time didn’t allow for the listing of multiple sections.

The first item ordered reads as follows;

By 17:00 August 13, 2008, Sunrise shall provide confirmation to the Provincial Officer

that it is able and willing to comply with the requirements of this Order. This notice shall

be made verbally with a written confirmation.

[223] Ms. White explained that given the situation she needed to have answers in a very tight

time frame. Item number 1 was ordered to allow her to get written confirmation that Sunrise

Propane was willing and able to do the clean-up. Ms. White indicated that the written confirma-

tion didn’t have to be formal. She would have accepted an email or a fax with the company’s in-

formation and the signature of someone authorized to act on behalf of the company.

Item number two required the following;

Effective immediately Sunrise and 2094528 shall provide at least twelve hours notifica-

tion to the provincial officer. If for whatever reason they cannot and/or are unwilling to

continue to be in compliance with the requirements of this Order, this notification shall

be made verbally with a written follow-up confirmation.

[224] Ms. White explained that she made this Order as the Ministry of Environment needed

notice if the company was going to stop the clean-up as alternate arrangements would have to be

made. She wanted verbal and written confirmation as the situation required action quickly.

[225] Item number three of the Order required Sunrise Propane and/or the numbered company

to “retain the services of one or more qualified persons to carry out the work required by this Or-

der.” Ms. White referred to page two of her report which defined a qualified person as “a person

who had demonstrated knowledge, experience and expertise in the area related to the work re-

quired by this Order.” This meant that the company needed to hire someone who had expertise in

handling asbestos and propane cylinders as well as familiarity with the legal requirements and

safety measures that needed to be taken. The company could have retained a company to work

on their behalf if it didn’t have the expertise required in-house.

[226] Item number four of the Order required that Sunrise and/or 2094528 provide written veri-

fication to Ms. White that a qualified person had been retained to do the work in item number

three. Item number five required Sunrise to continue the cleanup efforts immediately in the one

kilometre radius of the site. This item required the defendants to restore the natural environment

and take whatever measures were reasonable to do that. The expectation was that the debris and

waste associated to the explosion was to be removed. The debris included, but was not limited

— 49 —

to, things like pieces of metal, shingles, wood, broken glass, asbestos waste, insulation and limbs

from trees.

[227] Item number six required Sunrise to develop and provide a written clean-up plan to Ms.

White. Item number six also included a number of minimum requirements for the clean-up plan.

Item number seven required that Sunrise and, or 2094528 provide written copies of any sample

results of asbestos testing (both material and ambient) to Ms. White and to Toronto Public

Health. The last item, number eight, required Sunrise and, or 2094528 to develop a clean-up plan

within 24 hours that was satisfactory to Ms. White.

[228] Any item numbers that referred to the residential clean-up did not require the property

owner to do work. Sunrise Propane alone was responsible for this.

[229] Some of the items of the Order were effective immediately, others had a deadline of 5

p.m. of August 13, 2008 and one was to be complied with in twenty-four hours. Ms. White ex-

plained that the deadlines were very short because the work needed to happen quickly and the

Ministry of the Environment had to know if Sunrise was going to do the work. Ms. White also

explained that on the right side of the document after each item number there was a compliance

date listed as August 13, 2008. She noted that this was an issue with the template. Ms. White also

noted that the items “A” and “B” listed on page 3 of the Order are included in every Order. She

had crossed out item “A”, which required the Order to be posted at the site. As the buildings

where it was to be posted were destroyed during the explosion she felt this requirement did not

apply.

[230] Appeal information is listed on the back of the Order. Ms. White explained that this in-

formation is automatically included in every Order as it is part of the template and that if some-

one wanted to dispute something in the Order they could appeal to the Director. The Director

would review the Order and the information provided, submit and decide if there was to be any

change to the Order.

[231] Ms. White first attempted to contact someone from Sunrise on August 12, 2008. She

reached an employee named Murray Patton by email. He advised her that he was meeting with

the owners that evening and would pass on her contact information. Ms. White conducted a cor-

porate profile report which indicated that the officers of the company were Valerie Belahov and

Shay Ben Moshe. On August 13, 2008 at approximately 9:32 a.m. she spoke with Valerie Be-

lahov. Her manager had arranged a meeting for that day and she was calling Mr. Belahov to en-

sure that they were still going to meet.

[232] At 10:00 a.m. Mr. Belahov arrived at her office located at 5775 Yonge Street and they

subsequently had a meeting in the boardroom with the acting manager, Ms. Kathleen Anderson.

Ms. White showed Mr. Belahov a copy of the Order she had drafted and explained what Sunrise

was expected to do. The draft Order was not significantly different than the one she issued later

that day.

— 50 —

[233] In terms of compliance with the items in the Order Ms. White received verbal infor-

mation through legal counsel that Sunrise would not be able to comply with the requirements of

the Order until their issues with their insurance company had been resolved. She never did re-

ceive anything in writing, so, item one was never complied with. Item two was not complied

with as she had not received written or verbal confirmation that they could not or were unwilling

to comply with the Order. Ms. White also did not receive any written or verbal confirmation that

someone had been hired to conduct the cleanup; therefore items four and five had not been com-

plied with. Items five and six were also not complied with as the City of Toronto took over the

cleanup of the residential area. The cleanup plan previously provided by Mr. Hicks of Hazco was

not sufficient to meet the requirements in item six.

[234] Ms. White became aware that a gentleman by the name of Dan Ronen had identified him-

self as corporate counsel for Sunrise Propane and said that he was accepting service on their be-

half. Mr. Ronen also advised that his clients were looking to retain legal counsel for environmen-

tal matters. Ms. White understood that in-house counsel for the Ministry, Norm Rankin, had spo-

ken to two lawyers named Robert Warren and John Buhlman.

[235] At 3:00 p.m. on August 13, 2008 Ms. White called Mr. Belahov and left a voicemail

message to advise him that the Order had been finalized and to tell him that she wanted to meet

with him to go through it again. A short time later Robert Warren called inquiring about the Or-

der. Ms. White and Mr. Rankin provided an electronic copy of the Order to Mr. Warren and the

property owner and then called Mr. Warren to discuss the Order. Mr. Warren advised that he had

only been asked to make inquiries about the Order and could not accept service of the Order and

that they would relay the message to have somebody come by to accept service of the provincial

officer’s Order.

[236] On August 13, 2008 Ms. White was advised by Mr. Ronen that his clients would be

meeting with their legal counsel the next day to discuss the Order. An email dated August 13,

2008 at 3:18 p.m. was sent to Ms. White from Mr. Warren advising that his firm had been re-

tained to advise Sunrise Propane regarding certain aspects of the explosion at their site. Mr.

Warren asked Ms. White to contact him or his partner John Buhlman to discuss the Order she

had issued.

[237] The next day at 12:00 noon Ms. White called to get an update and was told that they had

not discussed the Order yet. By that time the deadlines for items 1 - 5 had passed and neither Mr.

Warren nor Mr. Buhlman asked for an extension of timelines.

[238] On August 15^th, 2008 Ms. White was with Mr. Rankin who was composing an email ask-

ing for an update of the situation. Ms. White did not have any further conversation with anyone

regarding the residential area and was never informed of any efforts on behalf of Sunrise Pro-

pane to comply with items five or six of her Order. There were some discussions regarding two

other provincial officer Orders that were issued regarding the site cleanup.

— 51 —

[239] Ms. White testified that there were some items in the Order that could have been com-

plied with without significant financial resources. For instance items number one and two only

required communication. Also, if a company had employees trained in clean-up operations item

three could be complied with as well. Although the other items required resources, she has seen

Orders appealed in the past to the Director to have certain requirements changed or revoked.

That was not done in this case. There was only a request made to her by either Robert Warren or

Dan Ronen to remove a line from the report that Sunrise Propane had retained Team Hazco. This

request was made at the time the document had been served.

[240] The City of Toronto started the clean-up of the residential area as defined in the Order on

August 16, 2008. Most of the debris was located east of the site, but there was a small amount to

the west of the site. Two types of asbestos were located, friable and non-friable. The non-friable

type was found within concrete and was closer to 54 Murray Road. The friable type was found

further away. The cleanup of the residential area was completed by August 22, 2008. Sunrise

Propane was never told that they did not have to conduct the cleanup of the residential area now

that the City of Toronto had stepped in to do it.

Evidence of the Defence

Robert Warren

[241] Mr. Warren was called by the defence. Mr. Warren in a lawyer authorized to practise in

the Province of Ontario. He was called to the bar in 1977 and started with WeirFoulds as an arti-

cling student in 1975. Among other areas of law Mr. Warren established a practice in environ-

mental law in the early 1980s when the provincial government enacted legislation dealing with

the transportation of hazardous liquid waste. Although Mr. Warren had not dealt with cases

where explosions had occurred he did have experience in relation to the long-term impact of con-

tamination and was retained by the province of Newfoundland to provide advice regarding re-

mediation options for contamination at several sites that were owned by Abitibi Bowater.

[242] Through the course of his practice in environmental work Mr. Warren has worked regu-

larly with environmental firms that do assessment and remediation work. In terms of the pay-

ment for assessment and clean-up work it has been his experience that if the consultant has a

regular client their payment is in the ordinary course; however, if the consultants are dealing with

a company that is unknown to them the consultant would normally ask for a form of retainer

which would need to be refreshed on a regular basis. With respect to the case at hand Mr. War-

ren’s partner, Mr. John Buhlman, had contact with Hazco Environmental. Mr. Warren advised

that based on his experience of contamination clean-ups the clean-up of a site like the site at 54

Murray Road would cost at least one million dollars for the on-site clean up.

[243] Mr. Warren was contacted by Mr. Ronen either on August 11, 2008 or August 12, 2008

who enquired as to whether or not WeirFoulds had sufficient expertise in dealing with the TSSA.

In Mr. Warren’s opinion Mr. Ronen and another lawyer, Mr. Landy, were scrambling to try to

— 52 —

determine what had happened and what their client’s exposure was. Mr. Warren answered that

they did have sufficient expertise and the firm was retained.

[244] Mr. Warren was asked by Mr. Landy to contact Ms. White. Mr. Warren called her and

left her a message. Then, Mr. Warren sent an email to Ms. White advising her that his firm had

been retained to deal with certain aspects and that the clients did not understand the nature of the

Order that they had been asked to sign. As of that time Mr. Warren was not aware of which Or-

der it was.

[245] Mr. Rankin, counsel for the Ministry of the Environment sent an email to Mr. Warren

enclosing a copy of Ms. White’s Order dated August 13, 2008; however, he did not have instruc-

tions to accept service at the time. Mr. Warren had some conversations with Mr. Landy and Mr.

Ronen and they made it clear to him that the ability of Sunrise to do anything on the site was a

function of a number of variables, primarily, whether or not their insurers would provide the

funds for the clean-up. Later Mr. Ronen dropped off a copy of the signed Order that he received

at 4:41 p.m. that day. Mr. Warren met with his clients the next day, August 14, 2008. On that day

his firm was retained. Mr. Warren could not recall the amount of the retainer but typically his

firm would ask for a $10,000.00 retainer.

[246] On August 14, 2008 he met with the clients Mr. Belahov and Mr. Ben-Moshe. He was

aware that they were both directors and officers of Sunrise Propane. Mr. Warren advised them

that as directors and officers of the corporation they were obliged to take all reasonable steps to

ensure that the corporation complied with the Order. In Mr. Warren’s view his clients were not in

a position to comply with item one, which required them to provide confirmation to the provin-

cial officer that there were able and willing to comply with the requirements of the Order by 5:00

p.m. August 13, 2008 because it was too late and because his understanding was that the client’s

did not have the money to comply with the Order unless the insurers became involved. Mr. War-

ren could not recall whether or not he was aware that Mr. Belahov had signed a work Order on

August 10^thfor Hazco Environmental to conduct clean-up work.

[247] Mr. Warren was also directed to a passage in the report by Ms. White, also dated August

13, 2008, which referred to a discussion that an employee of the Ministry of the Environment,

Ms. Anderson, had with Mr. Belahov that indicated that Mr. Belahov had indicated that he had

hired Hazco to handle the clean up. Mr. Warren was also of the opinion, based on his experience

that the Order, on its face, could not be varied verbally or informally between the parties. In

cross-examination Mr. Warren agreed that the obligation to comply with the Order continues

notwithstanding the fact that his clients had not confirmed that the insurers would be paying for

the work.

[248] His clients were still not in a position to comply with number one the next day, August

14, 2008. Mr. Warren had a number of conversations with Mr. Rankin on a regular basis over the

next two days and indicated that his clients were willing to do what they could in the circum-

stances. Mr. Warren told Mr. Rankin that his clients ability to do anything was a function of get-

ting proceeds from the insurance firm and at some point on the 14^thor 15^thof August Mr. Rankin

— 53 —

asked if it would assist if he or a representative from the Ministry of the Environment contacted

the insurers. In Mr. Warren’s view he had satisfied the verbal requirement of notifying the Min-

istry of the Environment that his clients were not able to comply; however, he was not sure if he

had confirmed this in writing.

[249] Mr. Warren provided Mr. Rankin with the names of the insurers by a facsimile message

and they continued to have conversations. Mr. Rankin repeatedly mentioned that the fundamental

concern was to get someone on-site to take on the remediation work and all of this was compli-

cated by the fact that the Fire Marshal would not release the site to anyone. At some point, Mr.

Warren felt that it was likely on the 15^thof August, Mr. Rankin advised him that the City of To-

ronto was going to take on the responsibility for securing the site and doing whatever remedia-

tion work was required right away.

[250] With respect to item two of the Order, which reads, “Effective immediately Sunrise and

2094528 shall provide at least twelve hours notification to the provincial officer. If for whatever

reason they cannot and/or are unwilling to continue to be in compliance with the requirements of

this Order, this notification shall be made verbally with a written follow-up confirmation”, Mr.

Warren’s view was that if his clients were not in compliance in the first place they could not con-

tinue to be in compliance and to his knowledge they had not been in compliance in the first

place.

[251] Mr. Warren also indicated that his clients were not able to comply with item three of the

Order, which required his clients to “retain the services of one or more qualified persons to carry

out the work required by this Order” or item number four which required his clients to provide

written verification to Ms. White that a qualified person had been retained to do the work in item

number three. His clients were also not able to comply with item five which required his clients

to carry out the clean-up work in the residential Order or item six which required them to provide

the provincial officer with a clean-up plan acceptable to her.

[252] Mr. Warren was of the view that the Order of Ms. White remained in force and that

whether or not it could be complied with was a different matter. Mr. Warren was not instructed

to appeal the Order. In Mr. Warren’s view there was not any provision to change the compliance

dates on the face of the Order and to his knowledge there was not any discussion or amended

Order made to give greater leeway for the compliance of the items by granting an extension of

time. In cross-examination Mr. Warren agreed that he based his conclusion that his clients were

not in a position to comply with the Order on information supplied to him by them. He did not

have an opportunity to review their bank accounts. He also agreed that he had advised his clients

that they were obliged to take all reasonable steps to comply with the Order.

[253] Mr. Warren’s also saw an Environment Canada Order that his clients were also served

with. The first item in that particular Order required Sunrise to provide certain information to

Environment Canada by October 13, 2008 and by that time his firm’s retainer was at an end. He

did not know if it had been complied with. Item 2 of that Order was consistent with the provin-

— 54 —

cial Order from the Ontario Ministry of the Environment and the focus was on compliance with

the provincial officer’s order.

Statements of Shaye Ben-Moshe

[254] Mr. Shaye Ben-Moshe was interviewed on August 13, 2008 by Detective Constable Sean

Griffiths and Detective Hunter Smith. The statement was video-recorded and Mr. Ben-Moshe

was under oath.

[255] Mr. Ben-Moshe started the business with his brothers-in-law Valery Belahov and Leon

Belahov in 1994. They started buying and selling small independent gas stations, they were also

operating and then began to focus on propane. They entered into a contract with Petro-Canada

and started to deliver propane to other gas stations.

[256] Mr. Ben-Moshe ran the operations of the company. He started off doing everything, in-

cluding dispatching, but was able to hire two dispatchers later on. Sunrise Propane began leasing

the property at the 54 Murray Road location approximately four years prior to the incident from

Teskey. At the time of the explosion Mr. Ben-Moshe estimated that there were approximately 30

employees and there were separate divisions. There was a separate company for the industrial

gases; there was a bulk propane supply company that supplied many locations across Ontario.

They would sell 2.4 to 2.8 million litres of propane a month. The amount of profit would vary

according to the price. Mr. Ben-Moshe advised that he was very concerned about safety at the

site and as far as he was aware they did not have any safety issues.

[257] A new 30,000 USWG tank was about two weeks away from being finished. Mr. Ben-

Moshe was having this installed because a new regulation was created by the TSSA that required

him to install it which would mean they would not have to do truck-to-truck transfers of propane.

Mr. Ben-Moshe explained that they ran into some difficulties in installing the tank because after

they had obtained the approvals for the installation of it it was already winter and they couldn’t

dig into the ground because it was frozen. He advised that Mr. Heyworth had called him approx-

imately two weeks before the explosion to get an update as to when he could come to inspect the

tank. Mr. Ben-Moshe advised him that it wasn’t finished.

[258] The two 2,000 USWG tanks had been moved to a new location to allow the 30,000

USWG tank to be placed where they had been but Mr. Ben-Moshe did not know exactly when

that was done or if they had been inspected after they were moved. While they waited for the

larger tank to be installed and inspected they continued to conduct truck-to-truck transfers of

propane. The trucks would be driven to the most “empty place, or the most far place” to conduct

the truck-to-truck transfer.

[259] Mr. Ben-Moshe was asked “ So, so did the TSSA give you, did they come to you and say

okay you’re putting in the big tank we’re going to give you a temporary permit to do the transfer

truck, truck to truck.” Mr. Ben-Moshe responded by saying “There’s no temporary permit, you

see, our, our property was, our property, we, we pay the lease before this ah, whatever regulation

— 55 —

or, or not regulation, exactly I’m not sure (inaudible word). So, so it’s either that we, we cease

our operation or something like this, or that we, we put a thirty-thousand gallon and then we start

to work from there. So it was a no brainier [sic] for us to put a thirty-thousand, if the City would

allow. So it all depends if the City wouldn’t allow we would put maybe a, we had discussion to

put the bulk head between the trailer, to do something else. But because the City has allowed us

to put a thirty-thousand gallon, we said okay let’s put a thirty-thousand gallon. You know it’s

going to take time, everybody knew it’s going to take time and it’s, again it’s not up to us be-

cause you have to wait for the guy to manufacture it and he was delay [sic], you have to, to wait

for Rob to install it, you have to wait for electrician, you have to order the parts, you have to,

million things which is not in our control right. But again yeah, we, we, we, we made the in-

vestment to make sure that everybody is ah you know for the benefit of everybody”.

[260] Mr. Ben-Moshe advised that Mr. Saini would work fuelling taxis with propane during the

weekend evenings. The bulk propane end of the business at 54 Murray Road only operated dur-

ing the week in the summer. Mr. Ben-Moshe advised that Mr. Saini had been trained; however,

he could not recall who had trained him and the records in the office at the site had been de-

stroyed. Mr. Ben-Moshe was very emotional at the end of the interview. It was clear that this in-

cident has taken a great toll on him emotionally.

[261] Mr. Ben-Moshe also provided a statement on August 21, 2008 at 2:15 p.m. to Mr.

Buhlman and Ms. Bunker 130 King St. West,15^thFloor. This statement was reduced to writing

and was signed by Mr. Ben-Moshe. It reads as follows:

My name is Shay Ben-Moshe and I am the operations manager and a part owner

of Sunrise Propane. Hard to tell the exact number but I had approximately 20-25

years working at Sunrise Propane. There were maybe 8 drivers, 6-7 guys working

in yard, 4 salesman and about 5 in the office/dispatch. The drivers would go long

haul to Sarnia and back and deliver propane to GTA area and surrounding area.

The facility guys would fill propane cylinders, filled cylinders for forklifts, food

caters, construction heaters, we were more busy in winter than in summer. The

guys would also fill up BBQ cylinders, limos and taxis. Typically there would

only be one guy on site to fill the taxis and BBQ cylinders. The sales people were

usually on the road and the office did paperwork and dispatch.

Yes, Parminder Singh Saini was employed by Sunrise Propane. He was sched-

uled to work the night of the explosion. I have not heard from him since. Par-

minder was a part time worker. He was with Sunrise Propane for about 5 months.

Parminder’s job was to fill up taxis, only taxis. I am aware of the propane train-

ing requirements of the job. Sunrise has 3 trainers, maybe Mike Martin trained

Parminder. Either myself, Mike Martin, the main trainer or Brent McIntyre

would do training. I don’t remember training Parminder, I spoke with Mike Mar-

tin, he thinks he did but he is not sure.

I have no documentation regarding any training records. Everything I had was at

the office and now it is gone. I had everything, training, licence, policies, proce-

dures everything was in place like it should be and now it is gone. I am trying to

— 56 —

get some of it back from people who have copies but it is hard. We had a Joint

Health and Safety Committee in place, myself, Brent and Gary Mistletsky were

on it. We would discuss things daily, not sure if members got certification train-

ing, not sure what that is, if a driver is hired Gary does it. I do hiring for the yard

or Malik does the hiring. I did not hire Parminder. Malik brought him to work

for us as I recall. I was not involved in the hiring process or paperwork for Par-

minder. I only saw Parminder a few times, hi, bye, nothing beyond that I had all

required licenses from TSSA for drivers, propane filling guys and in the plant.

We are licensed as a plant. I need to see wording on license to tell you what that

means.

Sunrise Propane has been operating at the site for about 4 years. We opened in

August 2004. We were in process of final installation of 30,000 US WG propane

tank. The tank was designed by John Keys. He is an engineer; he designed eve-

rything you see at the site. Right from the beginning, he got zoning from the city,

everything, he designed everything, he supervised the construction.

Mr.

McCullough did the construction work for Sunrise. We were installing the new

tank because the TSSA required everybody to have a permanent tank equal to or

larger than the largest tanker.

The installation of the new tank started in the fall of 2007. It was a cold winter

and we were not able to dig to do the electrical connections. The tank was wait-

ing for final inspection from the TSSA. The engineer got approval from the city;

it was not full at the time of the explosion. Don Hayward [sic] was senior Inspec-

tor from TSSA, he was on site maybe one to one and a half months before the ex-

plosion. Discount Propane has nothing to do with me or Sunrise. It is run by

Gary, he is a customer of mine, he owes me money, Gary is also a dispatcher for

Sunrise.

I, Shay Ben-Moshe, have provided the information contained in this statement

freely and without threat, inducement, coercion or intimidation. I have read the

entire statement and agree that the information contained in the entire statement is

an accurate account of the facts and details related to the explosion that occurred

on Sunday August 10, 2008 at 54 Murray Road at the Sunrise Propane depot.

Statement of Valery Belahov

[262] Mr. Belahov was interviewed on September 30, 2010 by two police officers, Detective

Constable Hunter Smith and Detective Constable Michelle Powell, and his statement was admit-

ted into evidence on consent. The interview was video-recorded.

[263] Mr. Belahov has been a co-owner of Sunrise Propane since its inception in 1996 along

with his brother Leon Belahov and Mr. Ben-Moshe. Mr. Ben-Moshe is married to the sister of

the Belahov brothers. Mr. Valery Belahov did not have any involvement in the day-to-day oper-

ation of the company. He would speak with Mr. Ben-Moshe approximately once every week or

two weeks about how the business was going and would visit the site on rare occasions. The

business started off with a gas station at Wilson Avenue and Keele Street in the City of Toronto

— 57 —

which sold gas and propane. They gradually increased the number of retail sites they leased and

operated.

[264] Mr. Belahov’s brother Leon had even less involvement with the day-to-day operations of

the business. According to Mr. Valery Belahov, Leon Belahov had had nothing to do with the

operation of Sunrise Propane for a few years. At the time of the incident Leon Belahov had been

in Panama for approximately one year and had only returned to Canada for a few visits.

[265] As far as Mr. Belahov was aware the propane side of the business involved distributing it

to gas stations and filling cylinders for businesses that needed them in order to operate fork-lifts.

Mr. Belahov did no have any concerns about safety issues at the plant. Mr. Belahov indicated

that the business had been doing well and as far as he was aware they did not owe a lot of money

to creditors.

[266] All of the paperwork for the company was kept in the office at 54 Murray Road and it

was all destroyed during the explosion. In terms of training Mr. Belahov indicated that Mike

Martin was an independent contractor that they hired to train people that worked for them.

[267] Mr. Belahov found out about the explosion on the same day when he was on his way to

the airport.

[268] Three documents were filed in reply on consent. The documents consist of a company

profile report, a business names report for GM Petroleum and a list of current business names for

the numbered company that was GM Petroleum. (Ex. 52 (a) (b) and (c).

The Occupational Health and Safety Charges – Information #05001902

[269] The first count on the information put before the court by the Ministry of Labour with

respect to charges under the Occupational Health and Safety Act R.S.S. 1990,c.0.1 as amended

(OHSA) requires a determination as to whether or not Sunrise Propane Energy Group Inc. failed

to provide information, instruction, and/or supervision to the deceased worker on safe work prac-

tices and recognition of hazards associated with propane storage, dispensing and handling, and

on appropriate emergency response to propane leaks contrary to section 25(2)(h) of the Act.

[270] The second count against Sunrise Propane Energy Group Inc. refers to the movement of

the two 2,000 USWG tanks to make way for the 30,000 USWG tank and charges that by doing

so the defendants failed as an employer to take every precaution reasonable in the circumstances

for the protection of a worker at a workplace contrary to section 25(2)(h) of the OHSA.

Position of the Parties

[271] All parties agree that the charges before the court are strict liability offences, as set out in

the seminal decision of R. v. Sault St. Marie (City), [1978] 40 C.C.C. (2^nd) 353. The burden of

— 58 —

proof is upon the Crown to prove the actus reus on the criminal standard. If the Crown succeeds

in proving the charges beyond a reasonable doubt the burden shifts to the defence to show on a

balance of probabilities that they have shown reasonable care or that there was a mistake of fact.

Position of the Crown

[272] The Crown submits that the OHSA is public welfare legislation as the purpose of the Act

is to ensure the provision of a minimum level of health and safety in the workplace. The Crown

relies on R v. Ellis Don Ltd. (1990), 1 O.R. (3d) 193, at 202, 210-1, 215-6 (C.A.); rev’d (1992), 7

O. R. (3d) 320 (S.C.C.), R v. Timminco Ltd. (2001), 153 C.C.C. (3d) 521 at p. 528 (Ont. C.A.),

Ontario (Ministry of Labour) v. Hamilton (City) (2002), 58 O.R. (3d) 37 at 43-44 (C.A.), Ontario

(Ministry of Labour) v. United Independent Operators Ltd. (2011), 104 O.R. (3d) 1 at 8, 14

(C.A.) and R. v. Brampton Brick Ltd. (2004), 189 O.A.C. 44, at 51 (C.A.) for the proposition that

when looking at public welfare legislation the provisions of the Act involved should be inter-

preted and applied in a manner consonant with the broad purpose of the legislation.

[273] The Crown points to section 25 of the OHSA which sets out a number of specified re-

sponsibilities of an employer. Section 25 reads as follows;

25. (1) An employer shall ensure that,

(a) the equipment, materials and protective devices as prescribed are provided;

(b) the equipment, materials and protective devices provided by the employer are maintained in good co n-

dition;

(c) the measures and procedures prescribed are carried out in the workplace;

(d) the equipment, materials and protective devices provided by the employer are used as prescribed; and

(e) a building, structure,or any part thereof, or any other part of a workplace, whether temporary or perma-

nent, is capable of supporting any loads that may be applied to it,

(i) as determined by the applicable design requirements established under the version of the Building

Code that was in force at the time of its construction,

(ii) in accordance with such otherrequirements as may be prescribed, or

(iii) in accordance with good engineering practice, if subclauses (i) and (ii) do not apply. R.S.O.

1990, c. O.1, s. 25 (1); 2011, c. 11, s. 9.

Idem

(2) Without limiting the strict duty imposed by subsection (1), an employer shall,

(a) provide information, instruction and supervision to a worker to protect the health or safety of the work-

er;

(b) in a medical emergency for the purpose of diagnosis or treatment, provide, upon request, information in

the possession ofthe employer, including confidential business information, to a legally qualified

medical practitioner and to such otherpersons as may be prescribed;

(c) when appointing a supervisor,appoint a competent person;

(d) acquaint a worker or a person in authority over a worker with any hazard in the work and in the han-

dling, storage,use, disposaland transport of any article, device, equipment or a biological, chemical or

physical agent;

— 59 —

(e) afford assistance and co-operation to a committee and a health and safety representative in the carrying

out by the committee and the health and safety representative of any of their functions;

(f) only employ in or about a workplace a person over such age as may be prescribed;

(g) not knowingly permit a person who is undersuch age as may be prescribed to be in or about a work-

place;

(h) take every precaution reasonable in the circumstances for the protection of a worker;

(i) post,in the workplace, a copy of this Act and any explanatory material prepared by the Ministry, both in

English and the majority language of the workplace, outlining the rights, responsibilities and duties of

workers;

(j) prepare and review at least annually a written occupationalhealth and safety policy and develop and

maintain a program to implement that policy;

(k) post at a conspicuous location in the workplace a copy of the occupational health and safety policy;

(l) provide to the committee or to a health and safety representative the results of a report respecting occu-

pational health and safety that is in the employer’s possession and,if that report is in writing, a copy of

the portions of the report that concern occupationalhealth and safety; and

(m) advise workers of the results of a report referred to in clause (l) and, if the report is in writing, make

available to them on request copies of the portions of the report that concern occupational health and

safety. R.S.O. 1990, c. O.1, s. 25 (2).

Idem

(3) For the purposes of clause (2)(c), an employer may appoint himself or herself as a supervisorwhere the

employer is a competent person.R.S.O. 1990, c. O.1, s. 25 (3).

Same

(3.1) Any explanatory material referred to under clause (2) (i) may be published as part of the posterre-

quired under section 2 of the Employment StandardsAct, 2000. 2009, c. 23, s.2.

Idem

(4) Clause (2) (j) does not apply with respect to a workplace at which five or fewer workers are regularly

employed. R.S.O. 1990, c. O.1, s. 25 (4); 2011, c. 1, Sched. 7, s. 2 (2).

[274] The Crown submits that formal averments that must be proved are the following:

 Identity of the corporate accused;

 The location of the workplace;

 The date of the incident in respect of which the training/supervision deficiency is

alleged;

 That the accused was an “employer” as defined in the OHSA;

 The identity of the deceased worker; and

 That the deceased was a “worker” as defined in the OHSA.

[275] The position of the Crown is that the formal averments have been proven by the agreed

statement of facts or by corporate exhibits filed.

[276] The substantive averment to be proved, the Crown submits, is that the accused failed to

provide information, instruction, and supervision to the deceased worker on safe work practices

and recognition of hazards associated with propane storage, dispensing and handling, and on ap-

propriate emergency response to propane leaks. The Crown points out that this means that the

— 60 —

defendants were required to provide the training themselves and cannot rely on an assertion that

he may have been trained elsewhere.

[277] Counsel for the Ministry of Labour, Mr. Wilson, points out that the defence seems to be

taking the position that the Crown has to disprove that the deceased was trained by calling virtu-

ally every training service provider in the province and asking them all if they trained Mr. Saini.

Mr. Wilson submits that count one is cast in such a way that what has to be proved is that Sun-

rise Propane failed in its obligation under s. 25(2)(a) to provide information, instruction and

training to Mr. Saini.

[278] Further, the Crown submits that it does not have to prove a causal link between the lack

of information, instruction and supervision and the death of the worker. All that is required is a

failure to provide any one of the three, it is then up to the defence to prove, on a balance of prob-

abilities, either that they took all reasonable care or, that they were mistaken about an issue of

fact that would otherwise give them a defence.

[279] The Crown relies on the decision in R. v. Wyssen (1992), 10 O.R. (3d) 193 (Ont. C.A.), at

para.198 where the court discusses how all encompassing the responsibility for safety is with re-

spect to employers and the fact that this responsibility cannot be contracted;

Here the definition of "employer" must be considered in context with the enforcement provisions

in s. 14(1) and (2). These underline the intention of the legislature to make an "employer" respon-

sible for compliance with the Act and Regulations. Section 14(1) imposes on an employer what s.

14(2) properly describes as a "strict duty". An "employer" is obliged by s. 14(1) to "ensure" that

the "measures and procedures" prescribed by the Regulations are carried out in the "workplace".

The relevant definition of "ensure" in the Shorter Oxford English Dictionary, (3rd ed.) is "make

certain". Section 14(1), therefore, puts an "employer" virtually in the position of an insurer who

must make certain that the prescribed regulations for safety in the workplace have been complied

with before work is undertaken by either employees or independent contractors.

The duty imposed by s. 14(2)(g) is even more sweeping, requiring an employer "to take every pre-

caution reasonable in the circumstances for the protection of a worker". The duties imposed on an

"employer" by s. 14(1) and (2) are undeniably strict and, in my opinion, non-delegable. The legis-

lature clearly intended to make an "employer" responsible for safety in the "workplace". The em-

ployer's duty under the Act and Regulations cannot be evaded by contracting out performance of

the work to independent contractors.

[280] In the Crown’s submission this Ontario Court of Appeal decision directs that an

employer is an insurer, or a guarantor, of safety in the workplace and cannot relieve itself

of responsibility by saying that someone else was responsible for deficiencies when the

statute assigns specific duties for the employer to carry out.

[281] Mr. Wilson also referred to the decisions of R. v. Strucform International Ltd.

[1992], O.J. No. 1711 (Gen. Div.) and R. v. Campbell, [2004] O.J. No. 129 (C.J.);aff’d

(unreported, February 24, 2006. S.C.J.) In Strucform a scaffold was not properly erected

and an employee fell and was injured. There were multiple employers involved in the

construction of the structure. The employer argued that there was no evidence to show

that it knew that the scaffold was improperly built. At page 6 of that decision the court

said;

— 61 —

The case law is clear that one employer cannot point a finger at another employer who might be

closer to the situation. Every employer has a duty to see that the workplace is safe. And in the

complexity of construction it is important that every employer use knowledge, due diligence, etc.,

to ensure that the workplace is safe. An employer is not entitled to say it is someone else’s respon-

sibility.

[282] In Campbell an employee cut down a tree that fell into an energized power line and then

onto another employee resulting in severe burns which caused the need for the amputation of

both legs, his right arm and shoulder and one finger of his left hand. The victim had not been

provided with any information, instruction or supervision regarding work near energized power

lines by the employer. In that case the court also found at para. 71 that the "finger pointing" de-

fence does not provide a valid defence (unless it fits a successful due diligence defence). Liabil-

ity in the workplace is joint and several. The misconduct of one participant in the workplace does

not exonerate the misconduct of another participant. Each participant must be considered sepa-

rately to determine that participant's compliance with duties. R. v. Stelco, [1989] O.J. No. 3122, 1

C.O.H.S.C. 76 (Ont. Prov. Ct.).

[283] The Crown also relies on the cases Ontario (Ministry of Labour) v. Dofasco Inc. (2007)

(2007), 230 C.C.C. (3d) 280m at 299 (Ont.C.A.);leave to S.C.C. refused [2008] S.C.C.A. No. 24

and R. v. Spanway Buildings Limited (unreported, April 3, 1986 Ont.Prov. Ct.) for the

submission that mistakes, carelessness, recklessness, or even negligent acts of a worker do not

afford a defence to an employer who has not complied with the requirements of the statute

regarding safety in the workplace.

[284] In the Crown’s submission the requirement in section 25(2)(a) for the provision of infor-

mation, instruction and supervision to a worker is for the purpose of protecting the health and

safety of the worker and requires a sufficiency component as well as a relevance component.

This training must be specific to ensuring the health of the employee and not generic training.

The Crown relies on R. v. Falconbridge Limited (unreported, May 6, 2004, at para. 3, nt. C.J.);

affd (unreported, August 28, 2006 S.C.J.) to illustrate this point. In Falconbridge the court

found that the employer had to provide training specific to that workplace.

[285] The Crown also submits that words “information, instruction and supervision” in section

25(2)(a) are conjunctive and the employer must provide all three. A failure to provide any one of

them is sufficient to ground a conviction.

[286] The Crown points out that the relevant evidence with respect to this count is as follows;

 The deceased had been working part-time on weekend evenings at Sunrise Pro-

pane for 4 to 5 ½ months filling automobiles with propane.

 Sunrise Propane used three trainers, Shay Ben-Moshe, Mike Martin and Brent

McIntyre.

 Mr. Ben-Moshe did not train the deceased.

 Brent McIntyre testified that he did not train the deceased.

— 62 —

 Mike Martin testified that he probably did not train the deceased. His practice

was to have each student print their own name on the form and then he would

provide the OPA with all the documentation required with respect to the students

he had trained

 The OPA were required to keep ROTs and Ms. Collingridge, who was in charge

of the record keeping, did a thorough search of the records and did not locate a

ROT for Parminder Saini

 Mr. Saini worked alone during his shifts unless a truck driver happened to be

present which meant that he was the only person available to respond to an emer-

gency.

[287] If I accept this evidence the Crown’s position is that the actus reus has been proved be-

yond a reasonable doubt.

[288] Mr. Wilson, on behalf of the Crown, also submitted that the court has to be careful not to

engage in the kind of speculation that counsel for the defence suggests and relies on the decision

in R. v. Wild [1971] S.C.R. 101 (S.C.C.) for the principle that reasonable doubt cannot be based

on speculation. If there is another inference to be made it must be grounded in the evidence.

[289] In the Wild decision the trial judge was considering a circumstantial case of criminal neg-

ligence causing death. The accused and friends had been out drinking excessive amounts of al-

cohol and then all four got into the accused’s vehicle which was being driven at 70 to 80 k.p.h

before crashing into a metal pole. Three of the passengers were killed as a result of the crash.

The accused was found pinned under the steering wheel, which was badly bent. His left leg was

to the left of the steering column and he was pinned such that a hydraulic jack was required to

release him from the vehicle.

[290] The accused claimed that he could not remember anything about what happened after

they left the bar. The trial judge acquitted the accused as he felt that the Crown had not proven

that he was the driver beyond a reasonable doubt and said “while it is probable he was driving,

there are these factors which make it, although not likely, but possible that someone else was at

the wheel.”

[291] The Supreme Court of Canada found that the trial judge had misapplied the rule in

Hodge’s case regarding circumstantial evidence in that he based his finding of reasonable doubt

on non-existent evidence. The court said the following at page 8 of the decision.

The vital circumstance in this case, which is barely mentioned by the learned trial judge, is that the

person who was found behind the wheel of the car after the accident was pinned in that position so

completely that he could only be released by the use of an hydraulic jack. The pinning in that pos i-

tion must have occurred immediately upon the violent impact which occurred when the car struck

the power pole. The theory propounded on behalf of the appellant involved the proposition that,

following that violent impact, with the car turning in a clockwise direction (which would result in

the passengers' being subject to a force carrying themtoward their right, as illustrated by the posi-

tion of two of the bodies after the accident), the appellant was hurled out of the back seat into the

driver's position on the left-hand side of the front seat, that he landed there in a sitting position,

with his left leg to the left of the steering column, and that then, and only then, he was pinned into

position.

— 63 —

In his reasons,the learned trial judge says that:

What can happen to the occupants ofa vehicle which comes to such a sudden stop,is,I

think, a matter for conjecture.

On the facts of this case, however, the issue to be determined was whether, in the light of the ap-

pellant's having been pinned behind the wheel, there was any rational conclusion, on the evidence,

other than that the appellant was the driver of the car at the time of the accident. He did not find

that there was such a rational conclusion. What he did was to conjecture that the appellant might

have been riding as a passenger in the back seat and, if so, might have been thrown into the front

seat on impact.

[292] The Crown submits that, similar to the Wild decision, it does not have to negate every

possibility which might be consistent with the innocence of the accused. The Crown simply has

to prove the offence beyond a reasonable doubt on the evidence that has been called. The court

cannot speculate in order to create a competing inference. In the Crown’s submission there is no

evidence at all that documents were created with respect to Mr. Saini and it would be pure specu-

lation to say that something happened to them after they had been placed in the mail, or that

someone lost them, or the names had been misspelled.

[293] The Crown also submits that the defence failed to lead any evidence that would be capa-

ble of establishing due diligence as there was no evidence that the defendants reasonably be-

lieved that Mr. Saini had been trained, no evidence that the defendants had taken all reasonable

steps to ensure that he was trained and there was no evidence that he was supervised. The Crown

also submits that there was no evidence that Mr. Saini worked in the propane industry prior to

working at Sunrise Propane. As in the Campbell decision, Mr. Wilson notes that the defendants

are not compellable but the decision not to testify about these issues is at their own peril if there

is no evidence for the court to assess regarding the defence of due diligence.

[294] The Crown submits that, unlike Mr. Saini, there was abundant evidence that Mr. De Leon

was trained and because of his training he recognized the dangerous situation when he observed

the vapour cloud, the hissing sound and the bang and turned and ran and saved his own life. In

contrast Mr. Saini ran directly into the hazard. The Crown submits that it cannot be known if the

deceased would have reacted differently if he had been provided with sufficient information, in-

struction and supervision. The point of the statutory obligation is to provide the employee with

sufficient knowledge to allow him to recognize the hazard and the emergency responses availa-

ble. In the absence of providing those tools it cannot lie in the mouth of the defence to suggest

either that it would not have made a difference had he been properly trained and supervised or

that the inappropriateness of the worker’s response was his own fault. The Crown also notes that

the evidence of Mr. Heyworth was that on November 9, 2006 another employee was working

with propane on the property without the required PPO3 ROT. This evidence demonstrates that

Mr. Saini’s lack of training was not a one-off anomaly.

[295] The Crown did not suggest that there always needs to be an on-site supervisor for an em-

ployee who is working a night shift; however, it is the position of the Crown that it would have

— 64 —

been open for the defence to demonstrate on the civil standard that notwithstanding no supervisor

being physically present, all reasonable steps had been taken to ensure that the supervision was

nevertheless in effect. There was no such evidence of any alternate supervisory arrangements

such as availability by telephone or spot checks or any other surrogate means of affording ade-

quate supervision.

[296] Although there was some suggestion that there were video cameras on site, the Crown

submits that there was no evidence that those cameras were being used for a supervisory pur-

pose, as opposed to a security purpose. There was also no evidence that the cameras could even

capture the kiosk and immediate surrounding area. Therefore, the Crown submits, it cannot be

argued that the video cameras were some form of surrogate supervisor.

[297] The Crown referred to the case in R. v. Cementation Canada Inc. [2008] O.J. No. 1145

(Ont. C.A.). In that case the employer was charged and convicted with failing to provide infor-

mation, instruction and supervision to an employee. The Applicant appealed its conviction. The

employee was working alone at night and was using a forklift and a chain to make repairs to a

large piece of equipment called a “sinking clam”. The employee, Mr. Howe, was seriously in-

jured while working on this piece of equipment. His head was cut and he suffered a broken leg in

three places. Mr. Howe testified that he had been instructed to use the forklift to repair the sink-

ing clam. His supervisor, Mr. Colbourne, told him to “use chains if need be or forks”. Mr. Howe

testified that Mr. Colbourne did not explain or demonstrate how to set up the clam or flip the

clam using the forklift. He also testified that he had not received any job-specific written infor-

mation or instruction on the day of the incident or throughout his employment.

[298] Mr. Colbourne did not testify at the trial; however, another employee, Mr. Parker, testi-

fied that he had told Mr. Howe on Mr. Howe’s first day of work not to take the clam apart while

working on the night shift and that he had provided other instructions regarding the procedure for

flipping the clam. The parties agreed that Mr. Howe had used forklifts in the past at various jobs

but was not certified by Cementation on how to use a forklift at the Red Lake Mine. It was also

common ground that Mr. Howe was not being supervised directly.

[299] The trial judge found that the information and instruction provided to Mr. Howe concern-

ing repair work on the clam was not adequate to protect his health and safety and also said that

the information that was provided was contradictory. Mr. Parker was not on site when Mr.

Colbourne gave Mr. Howe the order to use the forklift and the court found that it was reasonable

for Mr. Howe to follow his direction.

[300] The trial judge accepted the evidence of Mr. Parker but found that the supervision availa-

ble to the night shift employees working alone at that site was vague and indefinite. No evidence

was led that the shaft crew leader, whom the accused claimed was supervising Mr. Howe, had

any contact that evening with him. The trial judge found that Mr. Howe worked 12-hour shifts

with no supervision of any kind. The trial judge also said that the company could have set up,

— 65 —

with minimal time and expense, a method of communication and supervision between employees

who worked alone at night.

Justice Cronk noted at para. 29 that,

the level of information, instruction and supervision contemplated by s. 25(2)(a) will vary from

case to case, depending on the factual context of the workplace incident in question. At its core, s.

25(2)(a) contemplates information, instruction and supervision that is reasonable in all the circum-

stances.

And later at para. 31,

Second, the determination of whether an employer has discharged its duty under s. 25(2)(a) is a

fact-driven inquiry that depends on an evaluation of the evidence as a whole.

[301] Justice Cronk agreed with the test that the trial judge applied, that is, whether a reasona-

ble person would have foreseen that the information, instruction and supervision provided were

insufficient in light of the task and any associated hazard. The appeal was dismissed. The Crown

submits that essentially what the court is referring to is the lack of an internal responsibility sys-

tem. Mr. Wilson submits that the requirement for a supervisory system is what the section is re-

ferring to and that the defendants could have developed any number of economical and efficient

ways to supervise Mr. Saini and that there is no evidence that anything was done.

[302] Mr. Wilson further submits that the court cannot assume that Mr. Saini had a telephone

number to call in the event of a emergency as Mr. De Leon did as there is no evidence of this.

[303] In terms of the due diligence defence Crown relies on R. v. Raham (2010), 99 O.R. (3d)

241 (Ont. C.A.) in terms of what the reasonable steps taken by an accused have to refer to. In

Raham the Court was considering the categorization of a relatively new offence in Ontario of

stunt driving. The court discussed the defence of due diligence and at para. 48 as follows;

[48] The due diligence defence relates to the doing of the prohibited act with which the defendant is charged

and not to the defendant's conduct in a larger sense. The defendant must show he took reasonable steps to

avoid committing the offence charged, not that he or she was acting lawfully in a broader sense: see John

Swaigen,Regulatory O ffences in Canada: Liability & Defences (Toronto: Carswell, 1992), at pp. 98 -100. The

point is well made in Kurtzman, at para. 37: "The due diligence defence must relate to the commission of the

prohibited act,not some broader notion ofacting reasonably" (emphasis in original).Just as a due diligencede-

fence is not made out by acting generallyin a reasonableway,it is not necessarily lost by virtue of actions sur-

rounding the prohibited act,legal or illegal,unless those actions establish that the defendant,in committing the

prohibited act, failed to take all reasonable care.

[304] Mr. Wilson submits that the evidence led that there was a general atmosphere of safety at

54 Murray Road is not relevant to this charge as the due diligence, as noted in Raham, must re-

late to the prohibited act.

[305] The Crown submits that the decision in R. v. Gondor (1981), 62 C.C.C. (2d) 326 (Y.T.C.)

sets out what reasonable steps have to be taken by an employer to provide safety in a particular

workplace. The Gondor decision involved charges under the Games Ordinance of interfering or

touching a trap. Mr. Gondor had obtained a licence to drive a cat train on a wilderness road with

— 66 —

a number of traps on it. Many traps were near the road and were damaged by the vehicle. The

court was considering the question of reasonable care in a due diligence context. At page 332 of

that decision the court set out the following;

Reasonable care implies a scale ofcaring.The reasonableness ofthe care is inextricably related to the special

circumstances ofeach case.A variable standard ofcare is necessary to ensure the requisite flexibility to raise

or lower the requirements ofcare in accord with the special circumstances ofeach factual setting. The degree

of care warranted in each case is principally governed by the following circumstances:

(a) Gravity ofpotential harm.

(b) Alternatives availableto the accused.

(c) Likelihood ofharm.

(d) Degree ofknowledge or skill expected ofthe accused.

(e) Extent underlying causes ofthe offence are beyond the control ofthe accused.

23

(a) Gravity of potential harm -- The greater the potential for substantial injury,the greater the degree of

care required.The magnitude ofpotentialdamage to the environment or to property,business or to the safety

of individuals are the primary factors governing the measure ofcare required.

24

Pressing on with the cat train without moving the traps neither significantly increased the danger to any-

one or caused substantial financial losses.The potential gravity ofharm in the circumstances ofthis case does

not call for any particularly high standard ofcare.

25

(b) Alternatives available to the accused -- Reasonableness ofcare is often best measured by comparing

what was done against what could have been done.The reasonableness ofalternatives the accused knewor

ought to have known were availableis a primary measure ofdue diligence.To successfully plead the defence of

reasonablecare the accused must establish on a balance ofprobabilities there were no reasonable feasibleal-

ternatives that might have avoided or minimized injury to others.

[306] Ultimately, the Court found that Mr. Gondor had taken reasonable steps in all of the cir-

cumstances. Mr. Wilson noted that the courts in R. v. Inco Ltd., [2001] O.J. No. 4938 and in

Brampton Brick adopted the Gonder analysis. In Inco the defendants were charged with three

counts under the OHSA. A worker was killed in an explosion after placing a charge on a large

boulder which was detonated by another worker. There was a miscommunication between the

victim and another worker who thought the victim had left the blasting area and detonated the

charge. The accused was charged with failing to provide information and instruction to workers

on the importance of maintaining clear radio communication during a blasting operation among

other things.

[307] In considering the offence of due diligence the court quoted Gondor and applied the

analysis set out in that case. The Court took note of the fact that the business the accused were

engaged in was very dangerous and at paragraph 49 said;

I find on the facts of this case that neither Inco Limited nor Mr. Roque acted with a degree of due

diligence commensurate with the potential gravity of harm resulting from this business activity.

As indicated by the Crown, it is difficult to imagine an employment related circumstance where

the dangers are more apparent or more severe and the need for due diligence extremely high and

strict. I conclude that the defendants have not satisfied the onus of establishing the defense of due

diligence on a balance of probabilities.

[308] In this case Mr. Wilson submits that the standard of care is high, given that the propane

business is inherently dangerous and the potential gravity of harm resulting from improper han-

dling is obviously catastrophic.

— 67 —

[309] Further, Mr. Wilson submits that the standard of care is not measured by the low statisti-

cal probability of an explosion of this nature occurring. In Campbell at paragraphs 82 to 84 Jus-

tice Keast makes the point with respect to the tree cutting procedures;

82

It makes no difference that he can cut a tree safely in this fashion ninety-nine out of one hundred times,

when the failure to do so on the one hundredth time leads to a significant injury to a fellow employee. This is

like the safety harness cases - wherein employees must wear certain harness devices when working on scaf-

folds at certain heights above the ground.There have been workers that have taken a chance that they won't

fall. Perhaps you can do such several times without incident.However,ifthe time comes that there is a fall,the

past history does not mean the failure to wear the harness was a safe practice. The successful history of not

falling is of no consolation ifthere is a fall and death or serious injury takes place. Unlike the safety harness

cases, this situation is more serious because of the risk to other employees.

83

The lowstatistical chance ofsomething going wrong is not how you measure the standard of care. Con-

sideration has to be given to the nature of the consequences ofa low statistical chance materializing in an acc i-

dent. The higher the potential consequences then the lower the tolerance for any cutting method that does not

virtually eliminate even a small statistical chance ofsomething going wrong.This is why industrystandards call

for the utilization ofdifferent methods for cutting trees in these circumstances,such as the use of guy wires to

virtually guarantee the direction that a tree will fall.

84

The cutting ofa tree in these circumstances is not an exact and predictable science. There are a number

of variables over which the cutter can lose control.That is what happened to Mr. Campbell. The back cut ap-

peared not to be exact and the wind was probably a factor. Roulette finally caught up with Mr. Campbell.

[310] Therefore the Crown argues that the statistical probability of an explosion of this nature

occurring is not a factor to consider.

[311] With respect to foreseeability the Crown submits that the focus is not whether the de-

fendant could have foreseen that a hose would leak, the focus is on whether it was foreseeable

that having an untrained worker in a propane yard would place him in serious danger. The

Crown relies on the decision in R. v. Rio Algom Ltd. (1988), 46 C.C.C. (3d) 242 (Ont. C.A.) That

case involved a gate which had been installed at the front of a dump site to prevent mining cars

from inadvertently going into the dump area. Over time the gate was damaged and resulted in an

overswing to the degree where the gate could swing into the path of a parallel set of rail tracks.

[312] An accident occurred when the gate swung into the path of mining cars on the parallel set

of tracks crushing one of the accused’s employees to death. It was clear that the company was

aware of the damaged gate; however the accused argued that it could not have foreseen this par-

ticular type of accident occurring. The Ontario Court of Appeal found that the trial judge had

erred and applied the wrong test when he determined that none of the witnesses foresaw “this

type of accident happening” and that “no one had foreseen the happening of what happened on

September 3^rd”. At page 250 the court set out the test that the judge should have used;

25 The trial judge, however, appears to have focused his attention on the fact that none of the

witnesses foresaw "this type of accident happening" and that "no one had foreseen the happening

of what happened on September 3rd". In my view, in purporting to determine whether the re-

spondent had taken the care which a reasonable man might have been expected to have taken in

the circumstances, he applied the wrong test. The test which should have been applied was not

whether a reasonable man in the circumstances would have foreseen the accident happening in the

way that it did happen, but rather whether a reasonable man in the circumstances would have fore-

seen that an "overswing" of the gate could be dangerous in the circumstances and if so whether the

respondent in this case had proven it was not negligent in failing to check the extent of overswing

in order to consider and determine whether it created in any way a potential source of danger to

employees and in failing to take corrective action to remove the source of danger.

— 68 —

[313] Mistake of fact is another route to a defence of due diligence. In the Crown’s submission

the mistake of fact that the defendants are suggesting is not made out as the mistake as to a set of

facts has to be at the time of the incident and not after. In the Crown’s submission there is no ev-

idence that the defendants mistakenly believed that the deceased was trained; therefore, the de-

fendants fail in any assertion that there was due diligence in this manner.

[314] The Crown submits that count one has been proven and that there has been no evidence

of due diligence.

[315] With respect to count two the defendants are charged with failing as an employer to take

every precaution reasonable in the circumstances for the protection of a worker at a workplace

contrary to section 25(2)(h) of the OHSA. For ease of reference I have set out the section.

25. (1) An employer shall ensure that,

(a) the equipment, materials and protective devices as prescribed are provided;

(b) the equipment, materials and protective devices provided by the employer are

maintained in good condition;

(c) the measures and procedures prescribed are carried out in the workplace;

(d) the equipment, materials and protective devices provided by the employer are

used as prescribed; and

(e) a building, structure, or any part thereof, or any other part of a workplace,

whether temporary or permanent, is capable of supporting any loads that may

be applied to it,

(i) as determined by the applicable design requirements established under

the version of the Building Code that was in force at the time of its con-

struction,

(ii) in accordance with such other requirements as may be prescribed, or

(iii) in accordance with good engineering practice, if subclauses (i) and (ii)

do not apply. R.S.O. 1990, c. O.1, s. 25 (1); 2011, c. 11, s. 9.

Idem

(2) Without limiting the strict duty imposed by subsection (1), an employer shall,

(h) take every precaution reasonable in the circumstances for the protection of a

worker;

[316] The Crown submits that, although the defence submission is that the charge does not dis-

close the step that was not taken, that the charge has been sufficiently particularized as it states

that the defendants failed to take the reasonable precaution of “ensuring that a propane facility

was installed and operated in accordance with regulatory requirements and safe industry prac-

tice.” The Crown submits that the movement of the two 2,000 USWG tanks were not done with

— 69 —

the approval of the TSSA and that this charge does not have anything to do with the explosion as

it would be subject to prosecution even if the explosion had not occurred.

[317] The Crown submits that the evidence was that Mr. Keys would usually handle these types

of applications at the behest of his clients and that a suggestion has been made the Mr. Ben-

Moshe does not get involved with these applications to move existing equipment or to install

new equipment. The Crown refers to the Wyssen, case which in no uncertain terms sets out that

those responsibilities for safety are not to be delegated. Therefore it is no defence when the de-

fendants say that they were relying on Mr. Keys and Mr. McCullough.

[318] Mr. Wilson points out that there was significant work required to enable this movement

of the two 2,000 USWG tanks. The tanks had to be moved 35 - 40 feet and required additional

lengths of piping and electrical lines had to be disconnected and reconnected. In addition to this,

the location and orientation was now different from that approved of by the TSSA. The TSSA

did not have the opportunity to ensure that the required distances to various buildings, geological

features, and populations was within approved allowances. It is clear, in the Crown’s submission,

that compliance with the TSSA application for modification process was a necessary step to en-

sure safety of the workplace and surrounding area and that this was not done. Given that there

can be no delegation of this “reasonable step” the defendants should be found guilty of this count

as well.

Position of the Defence re: The Occupational Health and Safety Charges

Information # 05001902

Count One – Failure to provide information, instruction and supervision

[319] Mr. Adler, on behalf of the defendants, takes the position that the Ministry of Labour

must prove, beyond a reasonable doubt, that Mr. Saini had not received the information, instruc-

tion or supervision that the Crown alleges he ought to have acquired or received by or on the date

in question from any party, not just the defendant.

[320] Further it is Mr. Adler’s submission that the evidence is that all records of the defendant

were destroyed in the fire.

[321] Mr. Adler submits that at the time of the alleged offence there were no legislated standards

by which to evaluate any training programs or trainers. Mr. Adler conceded that s. 26(1)(l) of the

OHSA as of 2008 did require employers to carry out such training programs as may be pre-

scribed; however, the only training program that had been prescribed in August of 2008 was reg-

ulation 780/94 which didn’t relate to the issue at hand. For ease of reference I have included the

regulation below.

— 70 —

ONTARIO REGULATION 780/94

TRAINING PROGRAMS

Historical version for the period December 16, 1994 to January 25, 2009.

No amendments.

This Regulation is made in English only.

1. (1) The employer is required under clause 26 (1) (l) of the Act to carry out the training programs

necessary to enable a committee member to become a certified member, which must be selected in

accordance with the policies and guidelines of the Workplace Health and Safety Agency. O. Reg.

780/94, s. 1 (1).

(2) In subsection (1),

“carry out” includes paying for the training. O. Reg. 780/94, s. 1 (2).

[322] Mr. Adler notes that the wording of section 25(2)(a) on the OHSA is very precise and spe-

cific and does not deal with training. It reads as follows;

25. (1) An employer shall ensure that,

Idem

(2) Without limiting the strict duty imposed by subsection (1), an employer shall,

(a) provide information, instruction and supervision to a worker to protect the health or safety of

the worker;

In contrast Mr. Adler submits that section 26(1)(l) does deal with training. The section reads,

26. (1) In addition to the duties imposed by section 25, an employer shall,

(l) carry out such training programs for workers, supervisors and committee members as may be

prescribed.

[323] Therefore, he submits, that the rules of statutory interpretation dictate that one cannot

read in training into section 25. In Mr. Adler’s view the issue as framed by the Crown in count

one of the information turns not on training, but on information, instruction and supervision re-

garding propane hazards.

[324] The defendants point to the following evidence, in relation to the PP03 training, in sup-

port of their submission that the Crown has failed to prove the actus reus of the offence beyond a

reasonable doubt;

a) it is personal and belongs to the holder,

b) it is portable and can be taken by the holder from one employer to an-

other,

c) it can be obtained from any trainer, and the trainer is not obligated to

keep records of who he trained,

— 71 —

d) the PPO3 certificate can be issued by a myriad of groups, the OPA and

CPA being just examples of issuing bodies,

e) there is no over-all centralized agency that was required to keep a data-

base of who issued PPO3 certificates to whom,

f) there were difficulties and issues in the issuing and record-keeping pro-

cesses, such as inaccurate names, inordinate delays, etc.,

g) there was no legal requirement for an employer to specifically train and

issue a PPO3 certificate to an employee, due to its personal and portable

characteristic,

h) as long as the employee had such a certificate he was permitted to do

the work specified by that certificate,

i) the Crown was unable to prove that Mr. Saini had not obtained a PPO3

certificate, simply because, apart from the OPA, no effort was made by

them to canvass other certificate-issuers, despite the legal onus on the

Crown to prove that he wasn’t certified,

j) PPO3 certificate or not, the Crown has failed to prove that Sunrise did

not specifically provide the information, instruction or supervision to Mr.

Saini that was alleged to have been required to be provided on the day al-

leged,

k) the PPO3 training, like all other forms of information, instruction and

supervision, stresses safety, but no safety training program can ever be

perfect– and, ultimately, people react the way they do, despite or in spite

of what they had been taught.

[325] Mr. Adler also takes the position that if the Crown’s hypothesis is that the PP03 card is

irrelevant and that it is the “on-site, hands-on” information that is important , then there is ample

evidence of how seriously the defendants regarded safety at the workplace through the evidence

of Messrs. De Leon, Martin, McIntyre and McCullough who all said that safety at the 54 Murray

Road site was paramount Mr. Adler submits that the evidence of Mr. DeLeon speaks to every-

thing that the Crown says was not done and proves that the defendants did do everything that

was required of them.

[326] Mr Adler pointed out that there was no evidence of any prior complaints or problems re-

lating to Mr. Saini and that this can be used as evidence that he was properly informed, instruct-

ed and/or supervised. He added that there was no evidence that Mr. Saini was treated any differ-

ently than Mr. De Leon with respect to training and that there was no evidence of a lack of train-

ing.

[327] With respect to the issue of supervision Mr. Adler submits that I have to consider whether

or not having a supervisor present would increase the safety of the worksite. He submits that

there is no evidence that on-site supervision would have provided a safer worksite given that

there was no evidence of any prior problems during the night and this was a completely unfore-

seen event. Further, he submits that the Crown has not shown that there was a legal obligation,

regulatory regime, or industry accepted practice that required the defendants to have a night su-

pervisor for Mr. Saini.

— 72 —

[328] Mr. Adler submits that the Crown has not accounted for the “human factor” and points to

the fact that Mr. De Leon panicked, despite the extensive training he had in handling propane.

He also notes that Mr. De Leon did tell the deceased to flee after the explosions started and in-

stead Mr. Saini ran towards them.

[329] Mr. Adler submits that this type of explosion was not foreseeable as it was unprecedented,

apart from the incident Ms. Cooke had referred to in New Jersey and the Tacoma incident re-

ferred to by Mr. Bennett. He suggests that the evidence of Messrs. Bittles, De Leon and Bennett

in combination with the videos make it obvious that this unusual event unfolded very quickly.

[330] Mr. Adler referred to Ontario (Ministry of Labour) v. 1126449 Ontario Inc (c.o.b. KD

Farm Services) [2011] O.J. No. 6255(C.J.). In that case a worker had been crushed to death after

being run over by a trailer while he was in the process of catching chickens. The employer was

charged under section 25 of the OHSA of failing to provide information, instruction and supervi-

sion to a worker along with two other charges.

[331] Mr. Adler pointed to para. 65 of that decision which outlined what the Crown needed to

prove in order to obtain a conviction. The paragraph reads as follows:

65 In order to prove counts one and two, the Crown needs to satisfy the Court that it

was the lack of the defendant's provision of appropriate information, instruction and s u-

pervision and the lack of its having in place a procedure for individuals working near ve-

hicles that created the hazardous situation.

[332] Mr. Adler submits that the Crown has failed to prove this lack of appropriate information,

instruction and supervision in this case.

[333] The Court in K.D. Farms accepted the evidence of the witnesses who testified that to their

knowledge there had never been a similar incident within the industry. The Court also noted that

“while the Crown's suggestion that having a supervisor present as well as one or two spotters to

observe any moving of the truck might theoretically increase the safety of the worksite, there is

no concrete evidence that it would, in fact, do so.” The Court accepted that the company had

provided verbal on-the-job information, instruction and supervision and dismissed that count.

[334] Mr. Adler submits that this type of explosion was not foreseeable and that no information

or instruction or supervision could have been given to the deceased, or anyone, as to this specific

hazard because it came about because of a defective manufacturing process.

[335] Finally, Mr. Adler submits that even if I find that the company did not impart the necessary

information and instruction and supervision about all of the foreseeable hazards of propane that

due diligence defence has been made out.

— 73 —

Count 2 – Failure to take reasonable precaution of ensuring that a propane facility was in-

stalled and operated in accordance with regulatory requirements and safe industry prac-

tice

[336] Mr. Adler submits that the Crown has failed to prove this charge because the reorientation

of the two 2,000 USWG tanks played no role in the explosion therefore there is no evidence that

the reorientation resulted in any lack of protection of a worker at the workplace. This evidence

comes from Mr. Bennett who prepared the report for the Office of the Fire Marshal. Mr. Bennett

testified that it was the failure of the hose or pump bypass which caused the leak.

[337] Mr. Adler also submits that the Crown has failed to introduce any evidence as to what

constitutes safe industry practice and that the evidence from many of the witnesses was that Sun-

rise Propane was always a safety-first facility and no short-cuts were taken when it came to safe-

ty.

[338] Further, Mr. Adler also submits that the defendants cannot be faulted as they were relying

on trusted professionals whom had complied with all industry and regulatory requirements in the

past. He submits that the defendants had done everything they could because they had left the

matter in the hands of the experts who had the necessary experience and expertise to do the work

and, in any event, Mr. Keys said that the location where the two tanks were placed did comply

with the setback location.

[339] In support of this submission Mr. Adler relies on the decision in R. v. Bata Industries Ltd.

[1992] O.J. No. 236 (O.C.J.). In this case the defendant company was charged with a number of

offences under the Ontario Water Resources Act as well as the Ontario Environmental Protection

Act as there was a large chemical waste barrel storage site and chemicals were discharged into

the environment. There was an issue with respect to Director liability for chemicals leaking into

the ground from rusty containers. In considering the issue Justice Ormston said at para. 134 that

“the directors are responsible for reviewing the Environmental Compliance Reports provided by

the officers of the corporation, but are justified in placing reasonable reliance on reports provided

to them by corporate officers, consultants, counsel or other informed parties.”

[340] Mr. Adler relies on the decision in R. v. Canada Brick Ltd,(2004), with respect to the de-

fence of no reasonable foreseeability of danger resulting from the act, in this case the reorienting

of the tanks.

[341] In Canada Brick a worker was permanently disabled after a piece of machinery crushed

him. The company was charged with failing to take reasonable precaution for the safety of the

worker. At paragraph 137 Justice Hill discusses the defence of due diligence and foreseeability.

It reads as follows:

137 Turning first to the foreseeability issue, subjective foresight of a defendant respecting a

hazard is a factor for consideration in a due care defence presentation but not to the exclusion

of the overarching approach of an objective assessment of the reasonableness of the foresight

— 74 —

of circumstances of harm or a potential accident. "Negligence ... measures the conduct of the

accused on the basis of an objective standard, irrespective of the accused's subjective mental

state": R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, 67 C.C.C. (3d) 193 (S.C.C.),

at p. 252 per Cory J. In other words, liability exists where a defendant knew, or ought to have

known, of the dangerous work conditions. In R. v. Rio Algom Ltd., at pages 250-1, the court

stated:



I am not prepared to say that every failure to comply with the provisions s. 14(1)(b) [s.

25(1)] of the Occupational Health and Safety Act will result in a conviction thereunder.

In applying the principle espoused by Dickson J. in Chapin quoted above, it is my view

that the reasonable foreseeability of danger resulting from an act or omission which con-

stitutes prima facie proof of the offence alleged is one of the factors to be considered in

deciding whether an accused took all the care which a reasonable man might have been

expected to take in the circumstances. If that is what the trial judge purported to do he

was correct in so doing.



The trial judge, however, appears to have focused his attention on the fact that none of

the witnesses foresaw "this type of accident happening" and that "no one had foreseen the

happening of what happened on September 3rd". In my view, in purporting to determine

whether the respondent had taken the care which a reasonable man might have been ex-

pected to have taken in the circumstances, he applied the wrong test. The test which

should have been applied was not whether a reasonable man in the circumstances would

have foreseen the accident happening in the way that it did happen, but rather whether a

reasonable man in the circumstances would have foreseen that an "overswing" of the gate

could be dangerous in the circumstances and if so whether the respondent in this case had

proven it was not negligent in failing to check the extent of overswing in order to consid-

er and determine whether it created in any way a potential source of danger to employees

and in failing to take corrective action to remove the source of danger.



I am further of the view that the trial judge erred in fact and in law in reaching his con-

clusion that the accident which happened was not reasonably foreseeable by a reasonable

man on the ground the 11 witnesses had not foreseen this type of accident happening and

accordingly there was no negligence attributable to the respondent.

[342] Mr. Adler submits that the corporate defendant did all that it could do by hiring the two

people who were the best in the business and had always complied in the past.

[343] With respect to the likelihood of harm, Mr. Adler submits that there was no evidence of

what the potential degree of harm was.

[344] Mr. Adler submitted that the cases that the Crown was referring to were dealing with sit-

uations where the employer knew that there was a problem and in the case before the court there

was no knowledge as to what the problem was.

Analysis – Occupational Health and Safety Charges Information # 05001902

Count 1- Failing to provide appropriate information, instruction and supervision to Mr.

Saini regarding the safe work practices and recognition of hazards associated with propane

storage, dispensing and handling, and on appropriate emergency response to propane

leaks.

— 75 —

[345] In terms of the formal averments of the charge it is common ground that those have been

proven by the agreed statement of facts that was filed with the court. The issue here is what the

Crown has to prove with respect to the substantive averment of the actus reus.

[346] In R. v. Sault Ste. Marie, (1978) 40 C.C.C.(2d) 353 (S.C.C.) the Supreme Court of Cana-

da set out the approach regarding strict liability offences such as these at page 374 as follows:

Offences in which there is no necessity for the prosecution to prove the existence of

mens rea; the doing of the prohibited act prima facie imports the offence, leaving it

open to the accused to avoid liability by proving that he took all reasonable care.

This involves consideration of what a reasonable man would have done in the cir-

cumstances. The defence will be available if the accused reasonably believed in a

mistaken set of facts which, if true, would render the act or omission innocent, or if

he took all reasonable steps to avoid the particular event. These offences may proper-

ly be called offences of strict liability. Mr. Justice Estey so referred to them in Hick-

ey's case.

[347] At page 373 of the decision the Court explained why it was necessary to relieve the

Crown of the burden of proving mens rea in cases such as this.

In a normal case, the accused alone will have knowledge of what he has done to avoid the

breach and it is not improper to expect him to come forward with the evidence of due dil-

igence. This is particularly so when it is alleged, for example, that pollution was caused

by the activities of a large and complex corporation. Equally, there is nothing wrong with

rejecting absolute liability and admitting the defence of reasonable care.

[348] I agree with the position of the Crown that the actus reus to be proven is that the defend-

ant failed to provide information, instruction and supervision to the deceased.

Justice Libman

dealt with the issue in a precise and succinct manner in his authoritative text. Libman on Regula-

tory Offences in Canada. Loose-leaf (Salt Spring Island, B.C.: Earlscourt Legal Press, 2002)

regarding the defence of due diligence at page 7-2 where he writes:

It is not enough just to raise a reasonable doubt when asserting the due diligence

defence. The Crown cannot be required to disprove due diligence beyond a rea-

sonable doubt if regulatory schemes are to operate effectively. To put it another

way, the burden of an accused to raise a reasonable doubt “is not as great” as the

burden of an accused in a strict liability offence, to establish due diligence by a

balance of probabilities.

Since the burden of proof rests upon the accused, he or she must establish on the

balance of probabilities by credible evidence the defence of mistake of fact or the

absence of negligence; “whether the defence met that burden is a matter for the

trial judge”.

There is no onus on the prosecution to establish negligence on the part of the de-

fendant.

— 76 —

[349] In other words the Crown does not have to prove a negative by showing that the deceased

was not provided with information, instruction or supervision regarding the safe handling of pro-

pane by anyone. The charge in the information itself clearly states that it is Sunrise Property En-

ergy Group Inc. that failed to provide information, instruction and supervision to Mr. Saini re-

garding the safe handling of propane. When one considers the reason for placing the burden of

establishing due diligence on defendants it makes sense as the corporate defendant in this case is

expected to have the knowledge of what was done at the workplace.

[350] The defendant bears the burden of establishing, on a balance of probabilities that as part

of it due diligence defence information, instruction and supervision was provided to the deceased

on a balance of probabilities. The level of responsibility to provide the information, instruction

and supervision is very high and non-delegable and this accords with the intent of health and

safety legislation, to place the obligation on the defendant for the purposes of protecting its

workers. As stated in Wyssen,

The duty imposed by s. 14(2)(g) is even more sweeping, requiring an employer "to take every pre-

caution reasonable in the circumstances for the protection of a worker". The duties imposed on an

"employer" by s. 14(1) and (2) are undeniably strict and, in my opinion, non-delegable. The legis-

lature clearly intended to make an "employer" responsible for safety in the " workplace". The em-

ployer's duty under the Act and Regulations cannot be evaded by contracting out performance of

the work to independent contractors.For these reasons,I conclude,with respect, that the courts be-

low erred in holding that the Act did not apply to the respondent because he had employed an in-

dependent contractor. A new trial will be required to determine whether in fact the Act and the

Regulations were breached in the performance of the work of window-cleaning by the deceased.

Also see, Campbell, Strucform and Dofasco.

[351] As noted in the Inco and Gondor decisions the standard of care expected of the defendant

is extremely high and strict given the nature of the propane business. Propane is, of course, a

very dangerous substance that can cause catastrophic damage when not handled properly. There-

fore the potential for substantial injury or death is extremely high. The Campbell decision ad-

dressed how the standard of care should be measured as said the following at para. 83,

The low statistical chance of something going wrong is not how you measure the s tand-

ard of care. Consideration has to be given to the nature of the consequences of a low sta-

tistical chance materializing in an accident. The higher the potential consequences then

the lower the tolerance for any cutting method that does not virtually eliminate even a

small statistical chance of something going wrong. This is why industry standards call for

the utilization of different methods for cutting trees in these circumstances, such as the

use of guy wires to virtually guarantee the direction that a tree will fall.

[352] In considering this charge I can only look at the evidence I have before me. I cannot

speculate as to what might have happened or as to what documents may have existed that were

subsequently destroyed by the explosion: see Wild.

[353] In this case the evidence has established that there were three individuals who provided

training, or instruction and information to employees; Mr. Ben-Moshe, Mr. Martin and Mr.

McIntyre. In a statement taken on August 13, 2008, which was admitted into evidence on con-

sent, Mr. Ben-Moshe said that Mr. Saini had been trained but he didn’t know who had trained

him and the records in the office had been destroyed. This bald assertion is not evidence of train-

— 77 —

ing in my view. Mr. Ben-Moshe provided another statement on August 21, 2008 which was also

admitted into evidence on consent, and said that he didn’t remember training Mr. Saini and felt

that perhaps Mr. Martin did. It is clear to me that Mr. Ben-Moshe did not know very much about

the deceased.

[354] Mr. McIntyre testified that he would train employees of clients in the handling of propane

as an extra service. His practice was to send the completed exams to the Ontario Propane Asso-

ciation. He did not train Mr. Saini.

[355] Mr. Martin testified that the main service he provided was propane training and he has

trained hundreds, if not thousands, of people. He taught the PP03 course at the 54 Murray Road

site in Toronto but did not train the deceased. Emergency response in the case of a propane leak

was part of what he taught in his course. His practice was to send the completed exams to the

Ontario Propane Association. After the explosion he was asked if he had trained Mr. Saini and he

said he didn’t recognize the name. He contacted the Ontario Propane Association and was told

that there was no record of Mr. Saini having been trained.

[356] Ms. Collingridge testified that she developed the database for tracking the names of peo-

ple who had received training in propane handling by the Ontario Propane Association. After the

explosion she was asked whether or not there was a record of Mr. Saini being trained. She went

through the data base and tried searching in different ways and did not find a record showing that

Mr. Saini had been trained. I disagree with the defence submission that there were difficulties

and issues in the issuing and record-keeping processes. Her evidence was that the system worked

well and I accept her evidence.

[357] Mr. Adler submitted that I could make an inference that the deceased had been provided

with instruction and information given that there is no evidence that there were any complaints

made about him. In my view I would be engaging in impermissible speculation if I were to make

this inference on what amounts to a lack of evidence and I decline to do so.

[358] I found Ms. Collingridge, Mr. Martin and Mr. McIntyre to be honest witnesses. They all

were cooperative and provided their evidence in a forthright manner. I don’t have any reason to

disbelieve their evidence regarding the issue of training and Mr. Ben-Moshe’s statement does not

provide any evidence that the deceased had been properly instructed or advised as to how to han-

dle propane. In fact there was no evidence of any kind of mandatory or optional ongoing training

whatsoever.

[359] Given the evidence, the only rational inference I can draw is that Mr. Saini was not pro-

vided with sufficient information and instruction because of the way he reacted to the sound of

the explosion. As Mr. De Leon testified, Mr. Saini ran in the direction of the explosion instead of

away from it. I find as a fact that Mr. Saini was not provided with the relevant instruction or in-

formation.

[360] With respect to supervision, there is absolutely no evidence that Mr. Saini was supervised

while working at the 54 Murray Road site. While I agree with Mr. Adler that it would not make

sense to hire a second worker to supervise Mr. Saini, I also agree with Mr. Wilson that it would

have been fairly simple to set up some type of supervisory process that would address the need

— 78 —

for supervision. This could be as simple as providing Mr. Saini with a telephone number of

someone who could provide answers to any questions Mr. Saini had. A telephone call could also

be placed to Mr. Saini to check in on him.

[361] I agree with the Crown’s submission that Mr. Saini was put in the place of being in

charge of the yard and this was not acceptable given his lack of experience. He was effectively in

charge of the yard because he was the only employee there except for the additional truck driv-

ers, like Mr. De Leon, who would come into the yard to refill the trucks they were driving. There

was no evidence that these truck drivers provided any kind of supervision. In fact, Mr. De Leon

went over to the deceased to ask him if he knew what the smoke was that he had seen. Therefore

I find as a fact that Mr. Saini was not provided with appropriate supervision. The Crown has

proven the actus reus of this charge beyond a reasonable doubt.

[362] I turn now to the question as to whether or not the defendant has established due dili-

gence. The defendant submitted that due diligence has been made out because this type of explo-

sion was not foreseeable because it had not happened before.

[363] The issue of foreseeability is addressed in the Rio Algom case. The issue was foreseeabil-

ity. In finding that the incident was not foreseeable the trial judge focussed on the fact that none

of the witnesses had foreseen the incident happening in the way it did. The Court of Appeal at

page 250 found that the trial judge had used the wrong test and set out the correct test as follows,

The trial judge, however, appears to have focused his attention on the fact that none of the wit-

nesses foresaw "this type of accident happening" and that "no one had foreseen the happening of

what happened on September 3rd". In my view, in purporting to determine whether the respondent

had taken the care which a reasonable man might have been expected to have taken in the circum-

stances,he applied the wrong test.The test which should have been applied was not whether a rea-

sonable man in the circumstances would have foreseen the accident happening in the way that it

did happen, but rather whether a reasonable man in the circumstances would have foreseen that an

"overswing" of the gate could be dangerous in the circumstances and if so whether the respondent

in this case had proven it was not negligent in failing to check the extent of overswing in order to

consider and determine whether it created in any way a potential source of danger to employees

and in failing to take corrective action to remove the source of danger.

[364] Therefore, the issue is whether or not the reasonable person, apprised of the facts, would

have foreseen that those facts could have been dangerous in the circumstances. In this case

would a reasonable person have foreseen that having a worker who was only authorized to fill

taxis alone at night working at a propane filling station would be dangerous? The answer has to

be yes. It is difficult to imagine a more dangerous workplace than a yard filled with propane

where a leak would cause explosions given that there are so many possible sources of ignition

available at any given time.

[365] Although there was evidence of a general atmosphere of safety there were also some ex-

amples of deficiencies. During an inspection on November 9^th2006 a worker in the yard did not

have the training for filling propane cylinders, there was also a transfer hose that was left unat-

tended that created a risk for a pull-away where a person gets in the truck and drives away with

the hose attached, and a truck had been parked without chock-blocks placed behind the wheels.

On May 29, 2007 Mr. Heyworth returned to the facility at 54 Murray Road to conduct another

inspection and noted that a delivery hose of a cargo liner was attached to the storage tank again.

— 79 —

He issued a “Fuel Safety Inspection Report” requiring the deficiency to be addressed by June 26,

2007. The client was charged “double time” as it was a repeat infraction.

[366] Further, a general atmosphere of safety is not sufficient to address the requirement to

provide information, instruction and supervision on a balance of probabilities. The Ontario Court

of Appeal made it clear in Raham, a case involving Ontario’s stunt driving offence, that the due

diligence shown must be related to the specific offence charged. It stated at para. 48,

The due diligence defence relates to the doing of the prohibited act with which the defendant is

charged and not to the defendant's conduct in a larger sense. The defendant must show he took

reasonable steps to avoid committing the offence charged, not that he or she was acting lawfully in

a broader sense: see John Swaigen, Regulatory Offences in Canada: Liability & Defences (Toron-

to: Carswell, 1992), at pp. 98-100. The point is well made in Kurtzman, at para. 37: "The due dili-

gence defence must relate to the commission of the prohibited act, not some broader notion of act-

ing reasonably" (emphasis in original). Just as a due diligence defence is not made out by acting

generally in a reasonable way, it is not necessarily lost by virtue of actions surrounding the prohib-

ited act, legal or illegal, unless those actions establish that the defendant, in committing the pro-

hibited act, failed to take all reasonable care.

[367] The evidence before the court falls short of establishing due diligence as the due dili-

gence must relate to the instruction, training and supervision directly. The evidence on this issue

was vague and contrary to the evidence of deficiencies that were found by the Inspector. I am

sure that the defendants were well meaning, to a degree, but in an inherently dangerous business

such as this there must be a high degree of attention to detail and processes in place that address

day-to-day issues, particularly instructing, training and supervision for people handling this very

dangerous fuel. People make mistakes and processes assist in mitigating any damage that arises

when employees make those mistakes.

[368] As the actus reus has been proven beyond a reasonable doubt and the defence of due dili-

gence has not been established the defendant is found guilty of count one.

Count 2 – Failure to take reasonable precaution of ensuring that a propane facility was in-

stalled and operated in accordance with regulatory requirements and safe industry prac-

tice

[369] This count refers to the movement of the two 2,000 USWG tanks. It is common ground

that the actus reus of this offence has been proven beyond a reasonable doubt. The evidence of

Mr. Kulik and of Mr. Keys establishes this. Mr. Kulik’s evidence was that if the two 2,000

USWG tanks were to be moved, even temporarily, the owner would have to complete an applica-

tion for a modification because the prior location was approved based on the code and the new

location would have to continue to meet with the code. Mr. Kulik was not challenged on this

statement.

[370] Mr. Keys testified that he was not aware as to whether or not a modification application

was made regarding the two 2,000 USWG tanks. He denied being responsible for making an ap-

plication for the modification and said that he was only responsible for the installation of the

— 80 —

30,000 USWG tank. He believed that the two 2,000 USWG tanks were going to be moved to an

entirely different location.

[371] Mr. McCullough testified that he moved the two 2,000 USWG tanks on September 15,

2007. It didn’t occur to him that this was a modification to the site. He also said that the inspec-

tor was at the meeting in November regarding the need for a larger tank and it was clear from

that meeting that the 30,000 USWG tank would need to be placed in the same location where the

two 2,000 USWG tanks were. He said that no one told him that TSSA approval was required.

[372] Mr. Adler submitted that the movement of the two tanks was in a sense irrelevant as there

is no evidence that they were in any way a cause of the explosion. That is true; however, that

movement may well have resulted in a very dangerous situation given that the site was very close

to a residential neighbourhood. The moving of the tanks without the appropriate approval from

the TSSA was highly risky behaviour.

[373] Mr. Adler took the position that the defendant company has established due diligence as

it was entitled to rely on the expertise of Mr. Keys and Mr. McCullough. The defence relies on

the decision in R. v. Bata [192] O.J. No.26 (O.C.J.). In my view the Bata decision does not assist

the defence for a number of reasons. That case involved chemicals that had been used in the shoe

manufacturing process that were stored at a location near the factory in barrels. These barrels

rusted and the chemicals leaked into the ground contaminating the environment.

[374] The judge in that case found that the two directors who worked at the site were responsi-

ble and were found guilty, but found that Mr. Bata, who was often travelling out of the country,

and was rarely at the site was not liable. The judge also found that Mr. Bata had placed an expe-

rienced director at the site and that he “was entitled to assume that his on-site manager/director

was entitled to assume that the director was addressing environmental concerns. This decision

stands in stark contrast to the decisions in Wyssen, Campbell, Strucform and Dofasco which all

stand for the principle that responsibility cannot be delegated to another party.

[375] In my view the law is very clear, as I discussed with respect to count 1 that the defendants

are not entitled to rely on Mr. Keys and Mr. McCullough to take reasonable precautions in their

place. The key concept is control and the defendants clearly had control of the site and are liable

as per the cases referred to above.

[376] In this case Mr. Ben-Moshe was the day-to-day on-site manager and I find it shocking

that there was no system in place to ensure that the requirements of the TSSA were complied

with, particularly given that this filling plant was located in a densely populated area. There was

a total lack of communication among Mr. Ben-Moshe, Mr. Keys and Mr. McCullough. This re-

sulted in a lack of prevention to ensure that the propane tanks were properly installed.

[377] Therefore, I conclude that the defence of due diligence has not been established and the

defendant is guilty of this count as well, and a conviction will be registered.

— 81 —

Environmental Protection Act Charges Informations #s 10400978 & 0900354

[378] Sunrise Propane Energy Group Inc. and 1367229 Ontario Inc. are jointly charged with

discharging or causing or permitting the discharge of a contaminant, namely sound, vibration,

heat, gas vapour or solids, into the natural environment that caused or was likely to have caused

an adverse effect, contrary to section 14(1) of the Environmental Protection Act, (EPA) R.S.O.

1990. The section reads as follows,

14. (1) Subject to subsection (2) but despite any other provision of this Act or the regulations, a

person shall not discharge a contaminant or cause or permit the discharge of a contaminant into the

natural environment, if the discharge causes or may cause an adverse effect. 2005, c. 12, s. 1 (5).

[379] Sunrise Propane Energy Group Inc. is also charged with five counts of failing to comply

with a provincial officer’s Order contrary to section 186(2) of the EPA.

The Section 14 Charge – Information # 10400978

Position of the Parties

Position of the Crown

The Actus Reus

[380] Mr. Adamson, on behalf of the Crown, argued the section 14 charge before the court. The

Crown submits that the actus reus has been proven beyond a reasonable doubt and refers to the

agreed statement of fact regarding the discharge. The agreed statement of fact is set out in the

beginning of this judgment.

[381] Section 1(1) of the EPA sets out the definition of several terms in the section as follows:

“administrative penalty” means a penalty imposed under section 182.3; (pénalité administrative”)

“adverse effect” means one or more of,

(a) impairment of the quality of the natural environment for any use that can be made of it,

(b) injury or damage to property or to plant or animal life,

(c) harm or material discomfort to any person,

(d) an adverse effect on the health of any person,

(e) impairment of the safety of any person,

(f) rendering any property or plant or animal life unfit for human use,

(g) loss of enjoyment of normal use of property, and

— 82 —

(h) interference with the normal conduct of business; (“conséquence préjudiciable”)

[382] Section 186 of the Act states that “Every person who contravenes this Act or the regula-

tions is guilty of an offence. R.S.O. 1990, c. E.19, s. 186 (1).” There is an exception in 186

(1.1)” Subsection (1) does not apply to a contravention of section 14 unless the contravention

causes or is likely to cause an adverse effect. 2005, c. 12, s. 1 (54).” Thus a breach of s. 14 is an

offence under the Act only if the discharge at issue either caused or was likely to cause an ad-

verse effect.

[383] The Crown submits that in order to prove the actus reus that the Crown must establish (a)

the defendants discharged, or caused or permitted the discharge (b) of a contaminant (c) into the

environment and (d) that caused and adverse fact. The agreed statement of facts clearly shows

that there were a variety of devastating effects.

[384] The test for proof of the actus reus is found in Sault Ste. Marie as follows,

It may be helpful, however, to consider in a general way the principles to be applied in determin-

ing whether a person or municipality has committed the actus reus of discharging, causing, or

permitting pollution within the terms of s. 32(1), in particular in connection with pollution from

garbage disposal. The prohibited act would, in my opinion, be committed by those who undertake

the collection and disposal of garbage, who are in a position to exercise continued control of this

activity and prevent the pollution fromoccurring, but fail to do so. The "discharging" aspect of the

offence centres on direct acts of pollution. The "causing" aspect centres on the defendant's active

undertaking of something which it is in a position to control and which results in pollution. The

"permitting" aspect of the offence centres on the defendant's passive lack of interference or, in

other words, its failure to prevent an occurrence which it ought to have foreseen…. And

The test is a factual one, based on an assessment of the defendant's position with respect to the ac-

tivity which it undertakes and which causes pollution. If it can and should control the activity at

the point where pollution occurs, then it is responsible for the pollution. Whether it "discharges,"

"causes," or "permits" the pollution will be a question of degree, depending on whether it is active-

ly involved at the point where pollution occurs, or whether it merely passively fails to prevent the

pollution.

[385] The Sault Ste Marie case is the foundational case on the interpretation of the phrase “dis-

charge or caused or permitted the discharge of.” The Supreme Court found that the actus reus of

the offence involves discharging or causing or permitting a discharge where the defendant had

the ability and responsibility to control the activity that resulted in the discharge but failed to

prevent the discharge from happening.

[386] The Court also found that the city could not pass off responsibility on the independent

contractor and said the following:

A municipality cannot slough off responsibility by contracting out the work. It is in a position to

control those whom it hires to carry out garbage disposal operations, and to supervise the activity,

either through the provisions of the contract or by municipal by-laws. It fails to do so at its peril.

[387] The Crown submits that subsequent case law has followed this approach. In R. v. Nitro-

chem Inc., [1992] O.J. No. 3890, the company was shipping acid to a customer using a common

carrier. When the acid was being loaded at Nitrochem’s loading dock some leaked and ended up

in the river nearby. The company tried to argue that it didn’t discharge the acid as it was another

— 83 —

company that was transporting it; however, the Court found that the company was liable as it had

the ability to control how operations were conducted in its loading yard and found that the com-

pany was liable for the actus reus.

[388] In Placer Development Ltd. [1983] Carswell Yukon 14 (Yk Terr. Ct.) the corporate de-

fendant had a subcontractor who was responsible for maintaining a fuel tank farm on a remote

northern mine exploration site. As a result of the way the fuel tank farm was maintained there

was a large spill of diesel oil into a river. The corporate defendant claimed that the sub-

contractor was responsible for the spill. The Court went through the Sault Ste. Marie case and

concluded that “within the criteria established by Sault Ste. Marie, supra, the accused was in a

position to control or influence the offending activity and therefore had a responsibility to do so.”

The Crown also cited other authorities for this liability when work is done by third parties in R.

v. Lopes, [1996] O.J. No. 96, and Regulatory Offences in Canada: Liability and Defences. John

Swaigen at p. 127 and 128.

[389] In the case before the court the Crown submits that it is clear that the defendants had the

ability to control everything that happened at the 54 Murray Street Road yard and that is enough

to establish the actus reus. The evidence has shown that 1367229 Ontario Inc. is one of a cluster

of companies including Sunrise Propane, 1186728 Ontario Limited (which operated under the

registered business name “Sunrise Propane Industrial Cylinders”). All of the companies appeared

to be operated by what was effectively one business.

[390] The Crown submits that despite the fact that 1367229 Ontario Inc. did not admit that it

had management and control it admitted to being the holder of the lease for the site and that lease

places the burden on the tenant to comply with all applicable regulations at 2.17 of the lease.

This numbered company also holds the TSSA licence and the insurance policy. The Crown noted

that there is an endorsement on the insurance policy that says “it is hereby understood and agreed

that the named insured is amended to read as follows: 1367229 Ontario Inc. operating as Sunrise

Propane Industrial Gases and Sunrise Propane Energy Group Inc. and 1369630 Ontario Inc. and

1355643 Ontario Ltd.” This, in the Crown’s submission, shows that these companies are effec-

tively one entity.

[391] The Crown submitted that foreseeability is not a proper consideration when the Court is

looking at the actus reus. In R. v. Timminco Ltd., (2001), 153 C.C.C. (3d) 521 (Ont. C.A.). the

plant Timminco operated processed dolomite and other raw materials to produce magnesium

metal and alloys. A press operator employed by Timminco, died from injuries he sustained in a

workplace accident on Timminco's premises. In discussing foreseeability the court referred to the

Ontario Court of Appeal decision in Rio Algom and at para 28 said, “The foreseeability of a haz-

ard is properly to be considered as part of a due diligence defence.”

Due Diligence

[392] Once the actus reus is proven the burden shifts to the defence to establish due diligence

on a balance of probabilities. The Crown position is that the defendants failed to exercise due

— 84 —

diligence as they failed to take numerous steps that would have prevented the accident from oc-

curring. The standard of care required in this case is a very high one given that propane is inher-

ently dangerous.

[393] The Crown submits that given that the exact cause of the explosion is not known, the de-

fence must show that there was due diligence with respect to both the pump and the hose. The

Crown referred to the decision in R. v. Petro-Canada, [2003] 63 O.R. (3d) 219(Ont. C.A.) which

addresses the issue of establishing due diligence where there is uncertainty of the cause of a cer-

tain event. In that decision the Ontario Court of Appeal referred back to the Sault Ste. Marie de-

cision and said that where the cause is not know the defendant can prove due diligence by estab-

lishing a preventative system. The Court said the following at para. 15

[15] While, in the end, Dickson J. ordered a new trial, he did describe briefly how the defence of

reasonable care might operate in the context of the charge in that case. At p. 1331 S.C.R., p. 377

C.C.C., he made clear that the question would be whether the accused had negated its wilful in-

volvement in the act charged and ". . . whether the accused exercised all reasonable care by estab-

lishing a proper systemto prevent commission of the offence and by taking reasonable steps to en-

sure the effective operation of the system". The focus of the defence is the discharge and the steps

taken to prevent it.

[394] In the Crown submission there has been no evidence of a preventative system whatsoev-

er.

The Failure to Stop Truck-to-Truck Transfers

The Director’s Order was made on October 31, 2006 and said the following:

Fuels Safety Program

DIRECTOR’S PUBLIC SAFETY ORDER

IN THE MATTER OF:

THE TECHNICAL STANDARDS AND SAFETY ACT, 2000,

S. O. 2000, c. 16

- and -

ONTARIO REGULATION 211/01 made under the

Technical Standards and Safety Act, 2000

(Propane Storage and Handling)

Subject:

Tank Truck to Tank Truck Transfer of Propane

Sent to: Propane Industry Advisory Council, Propane RRG, TSSA web-site

Pursuant to subsection 31.2 ofthe Technical Standards and Safety Act, 2000, the Di-

rector hereby orders the following:

Clause 8.13.3 of the CSA B149.2-05 is revoked and the following substituted:

— 85 —

8.13.3 The contents of a tank on a tank truck or a cargo liner shall not be transferred to

the cargo tank on another tank truck or cargo liner unless the operation is carried out at a

bulk plant.

A bulk plant is defined for this specific clause as a facility where the primary function is

to store LP-Gas prior to further distribution (where LP-Gas is received by cargo tank ve-

hicle, railroad tank car, or pipeline, and then distributed by portable container (package)

delivery, by cargo tank vehicle, or through gas piping).

Note: “(package) delivery” means, in the above definition, the delivery of portable con-

tainers for bulk distribution, but excludes the delivery of containers brought for filling by

the owner of the container.

The bulk plant to be used as a location to transfer propane from a cargo tank to another

tank truck or cargo liner shall be approved by TSSA, except for an emergency such as a

loss of power due to unexpected natural weather. This approval shall include:

 Satisfying Branch Standard #9;

 Having space to accommodate both tank trucks without blocking any

emergency exits;

 Satisfying municipal approvals;

 Having a permanent licensed storage capacity at least equal to the largest

tank truck or have the capacity of truck to truck transfer specifically ap-

proved by TSSA;

 Satisfying clearances as stated in CSA B149.2-05;

 Having a Propane Truck Operator (PTO) certificate holder perform the

transfer, and

 Satisfying clause 7.3 of CSA B149.2-05. (Note: Both tank trucks, if

compliant with CSA B620-03, are accepted as satisfying clause 7.3 of

CSA B149.2-05).

[395] Mr. Heyworth attended at the Sunrise Propane site to specifically direct them to comply

with the Order and ordered them to comply with it by November 30, 2006. Despite these two

Orders the defendants continued to conduct the truck-to-truck transfers until August 2008 when

the explosion occurred.

[396] The Crown submits that even if I find that Mr. Heyworth did advise the defendants that

they could continue to conduct truck-to-truck transfers the defendants had been put on notice that

there was a safety issue with the transfers. It is common ground that the Director’s Order was

brought to the attention of the defendants and that the defendants did not seek a variance of the

Order. There was also evidence that there was a newsletter that went out to the industry in the

winter of 2007 that explained the Order and set out the entire text of the Order and that Sunrise

Propane was on the mailing list.

[397] The Crown submits that although I heard evidence about the meeting with Mr. Heyworth,

Mr. Ben-Moshe, Mr. McCullough and Mr. Keys, there was no evidence that Mr. Ben-Moshe

made an inquiry as to why the Order had been made and what was dangerous about the truck-to-

truck transfers. There was no clear question asked of Mr. Heyworth as to whether or not they

— 86 —

could continue to do truck-to-truck transfers and one would expect that the question would be

asked if the defendants were looking for an exemption.

[398] The Crown also notes that if I do find that Mr. Heyworth gave the defendants express

permission to continue to do truck-to-truck transfers there was another legal instrument, a TSSA

Code Adoption Document, that was issued in June of 2007 that specifically prohibited truck-to-

truck transfers and there is no evidence of anyone giving the defendants an exemption from this

requirement. This Code Adoption Document was posted on the TSSA website on June 14^th,

2007. The Crown submitted that Code Adoption Documents can be characterized as major

events in the propane industry as the Canada Standards Association (CSA) code only comes out

every few years.

[399] The Crown submits that one would expect a sophisticated business man such as Mr. Ben-

Moshe who had 56 sites and multiple business lines to ensure that he received written confirma-

tion regarding an exemption for truck-to-truck transfers. The only written confirmation produced

in this case is the letter Mr. Keys wrote to the TSSA which in the last sentence indicates “the fa-

cility will remain in operation as a filling plant complete with a cylinder filling trailer, cylinder

storage, auto propane dispensing and bulk truck loading.” In the Crown’s submission a letter

written almost a year later by the engineer, not the defendants, that doesn’t explicitly reference

truck-to-truck transfers cannot be capable of confirming an exemption.

[400] The Crown referred to Mr. Ben-Moshe’s statement to the Toronto Police on August 13,

2008 regarding truck-to-truck transfers. In that statement Mr. Ben-Moshe states that he is uncer-

tain as to whether or not the new regulation prohibited truck-to-truck transfers. In the Crown’s

submission this answer was deceptive as he must have known full well what the regulation was

and what it required. Later on in the same statement Mr. Ben-Moshe is asked if the company was

given a temporary permit to conduct truck-to-truck transfers and he answers that there was no

temporary permit and goes on to say that they needed to put in a 30,000 gallon tank and that he

wasn’t sure about the regulation. In the Crown’s submission Mr. Ben-Moshe is being evasive in

giving that answer and that that speaks to his knowledge of something untoward happening.

[401] In terms of credibility assessments the Crown submits that I should take into account the

fact that Mr. Keys and Mr. McCullough worked for the defendants for many years, and in the

case of Mr. McCullough, his evidence was that the defendants provided most of his gross annual

income. With respect to Mr. Heyworth’s evidence the Crown submits that he was adamant that

he did not provide permission for continued truck-to-truck transfers and that his evidence should

be considered in light of what Mr. Heyworth understood the business to be. Mr. Heyworth

thought that only Discount Propane would be affected as they had the smaller trucks. The Crown

submits that Mr. Heyworth’s denial of seeing truck-to-truck transfers after the November meet-

ing should be believed because the evidence shows that these were conducted at the end of the

work day and in the middle of the night which made it unlikely that he would see them. The

Crown went on to outline how the defendants were not duly diligent in a number of ways.

— 87 —

Failure to Install the 30,000 USWG Tank in a timely fashion

[402] The Crown submits that the defendants did not pursue the installation of the 30,000

USWG tank in a diligent manner and provided a chart of the chronology of events as they relate

to the tank. I have reproduced it below for ease of reference.

Chronology of installation of 30,000 USWG Tank

Date

Event

Evidence

October 31, 2006

Director’s Public Safety Order

Sandra Cook

posted on TSSA website

Exhibit 20 – TSSA website

screen print showing posting

dates for documents

November 9, 2006

Director’s Public Safety Order

shown to Shay Ben-Moshe by

Don Heyworth

Tab 16, Exhibit 1A – Fuel Safety

Inspection Report requiring com-

pliance with Director’s Public

Safety Order

November 16, 2006 (according to Met with Shay Ben-Moshe at Mr. Ross Keys, Transcript of Trial for

Ross Keys)

Ben-Moshe’s request to discuss

the Director’s Order – nobody

else present

February 7, 2012 at p. 25, line 8

to p. 28, line 19; and p. 30, lines

6-18

November 16, 2006 (according to Meeting at 54 Murray Road –

Rob McCullough – Transcript of

Trial for February 21, 2012 at p.

16, line 4 to p. 19, line 3

Rob McCullough)

Shay Ben-Moshe, Ross Keys,

Rob McCullough, Don Hey-

worth, possibly Gary Mislitsky

November 21, 2009

Keys sends letterto Toronto ask-

ing for a letter confirming that

increased storage of propane at

the site is a permitted use

Tab 17, Exhibit 1A

December 4, 2006

December 20, 2006

Toronto sends reply letter indicat- Tab 18, Exhibit 1A

ing that is a permitted use,based

on information provided in Keys’

letter

Ross Keys meets with Shay Ben-

Moshe,Don Heyworth (and pos-

sibly Rob McCullough) at 54

Murray Road to discuss whether

the TSSA will accept the city’s

permitted use letter; discussion of

whether Heyworth will shut down

Sunrise Propane

Ross Keys, Transcript of Trial for

February 7, 2012 at p. 36, line 9

to p. 39, line 31

Don Heyworth’s dockets indicate

a two hour“Consultation” relat-

ing to Murray Ave. on December

20, 2006 – Exhibit 25 at Tab 2

In January, 2007

Don Heyworth calls Ross Keys to Ross Keys, Transcript of Trial for

confirm that the TSSA will ac-

cept the permitted use letter pro-

vided by Toronto. Ross Keys

passes the information on to Shay

Ben-Moshe and Ben-Moshe to let

February 7, 2012 at p. 36, line 9

to p. 44, lines 27-32; and p. 52,

lines 12-26

Don Heyworth’s dockets indicate

a one hour “Consultation” relat-

— 88 —

Date

Event

Evidence

him know once Sunrise has de-

cided whether to install an 18,000

USWG or a 30,000 USWG tank

ing to Murray Ave. on January 5,

2007 – Exhibit 25 at Tab 2

June 11, 2007

Rob McCullough invoices Sun-

rise propane $10,000 for deposit

paid to order the 30,000 USWG

tank

Exhibit 45, invoice number

16251, dated June 11, 2007

September 15, 2007

Rob McCullough relocates and

reconnects the 2,000 USWG

tanks to make room for the

30,000 USWG tank

Rob McCullough – Transcript of

Trial for February 21, 2012 at p.

15, lines 4-7

Exhibit 45, invoice number

16378, dated September 15, 2007

September 25, 2007

30,000 USWG tank delivered to

54 Murray Road

Rob McCullough – Transcript of

Trial for February 21, 2012 at p.

24, lines 13-14

Exhibit 45, invoice number

16403, dated October 26, 2007

October 15, 2007

October 19, 2007

Ross Keys informed that 30,000

USWG tank on site and goes to

site to take measurements

Ross Keys, Transcript of Trial for

February 7, 2012 at p. 53, line 24

to p. 54 line 20

Ross Keys sends letter to Shay

Ben-Moshe enclosing the appli-

cation package sent to the TSSA

for approval of the 30,000 USWG

tank and indicating that he can

anticipate receiving approval

from the TSSA within two to

three weeks, and that the approval

will include the name of the

TSSA inspectorto contact to ar-

range an inspection once installa-

tion is complete.

Exhibit 28 at Tab I

October 24, 2007

November 8, 2007

Application package for approval Tab 24, Exhibit 1A

of 30,000 USWG tank received

by TSSA

Marek Kulik of the TSSA sends

letter to Shay Ben-Moshe ac-

knowledging receipt of applica-

tion and advising to call to sched-

ule inspection of the facility at

least 10 days before it is to be

commissioned

Tab 25, Exhibit 1A

Marek Kulik -- Transcript of Tri-

al for February 13, 2012 at p. 9,

line 18 to p. 10, line 28

June or July 2008

August 10, 2008

Rob McCullough starts actively

working on installing the 30,000

USWG tank

Rob McCullough – Transcript of

Trial for February 21, 2012 at p.

52, line 32 to p. 56, line-28

Explosions occur. Installation of

30,000 USWG still two to three

weeks away from completion

Ben-Moshe statement to TPS at

p. 43, lines 3-6; Tab 5A, Exhibit

1A

— 89 —

Ross Keys’ estimate of how long it would take to get a new tank

Ross Keys, Transcript of Trial for February 7, 2012 at p. 49, lines 4-17:

Q. Okay. And from that experience, do you have any knowledge about how long it takes to get a tank,

once you want to order one?

A. If you were to order one brand new; by the time you got the shop drawings back from the supplier,

which could take depending on how busy they are, two to three weeks, and once you've determined that

their tank is good, and the openings are all where they want to be, where you want them to be, then once

you submit the shop drawings back to the fabricator, they will then order the steel, so I would say that

whole process from you deciding you want a tank to actually getting it shipped to the site, probably in the

four to six-month range.

[403] In the Crown’s submission work on the tank should have started in September of 2007;

however, because of a number of issues it didn’t get started until June of 2008 and was about

three weeks away from completion when the explosion occurred. Almost two years had passed

and it still wasn’t done which shows that the installation was not a priority for the defendants.

[404] In addition to the lack of diligence in pursuing the installation of the 30,000 USWG tank

the Crown submits that there were no interim measures that were taken to address the safety con-

cerns with respect to truck-to-truck transfers. Mr. De Leon was not even aware that truck-to-

truck transfers were presumptively illegal and the Crown suggests that at a minimum there

should have been some training for the drivers to alert them to these concerns.

Failure to Establish a Preventative Maintenance System for Equipment

[405] It is the Crown's position that the defence has failed to show that they have been duly dil-

igent. This is because the corporate defendants failed to show that there was a proper preventa-

tive maintenance system in place to prevent, for instance, defective parts from leading to leaks of

propane and to ensure that employees continue to abide by safe practices. The Crown referred to

Justice Hill’s decision in R. v. Canadian Tire Corp., [2004] O.J. No. 3129 (S.C.J.). In that case

Canadian Tire had imported a quantity of bar fridges that had CFCs which are prohibited. Cana-

dian Tire argued that they were entitled to rely on their supplier in China who had been reliable

in the past. Justice Hill agreed with the findings of the trial judge that the defendant had failed to

establish a system such as random audits to ensure that their products did not contain excessive

CFCs and agreed that this appeared not to be a priority of the corporation. This was discussed at

para. 92 and 93 of the judgment as follows,

The due diligence jurisprudence not infrequently refers to a systemof randomaudit or testing as a

systemic means of guarding against a prohibited act occurring. Was the process flaw or deficiency

easily discoverable? (R. v. Imperial Oil Ltd., supra at para. 18, 20). Would a "simplicity of testing"

have determined that a problem existed? (R. v. Imperial Oil Ltd., supra at para. 29). The trial court

found as a fact that the appellant could have carried out "spot checks or randomchecks" on post

January 1, 1999 imports of Haier bar fridges. It was not submitted by the appellant that the evi-

dence established such checks had been made but rather that it was unnecessary or would be diffi-

cult given the sheer number of products imported by the corporation. The external environmental

audit reports commissioned by the appellant, and relied upon at trial and on appeal, themselves

thematically noted the weaknesses of the corporation's approach to compliance audits including

regulatory compliance (para. 21-32 supra). Ms. Bebee, whose evidence was often uninformed of

— 90 —

details (para. 38, 40, 53, 55 supra), testified that some form of "internal auditing program for envi-

ronment [al] ... compliance" existed (para. 33, 40 supra). No environmental auditor was called to

testify. This evidence was vague and did not address imported product compliance with regulatory

guidelines. Mr. Antcliffe's quality control duties did not extend to checking for the presence of

CFCs in imported fridges. He thought the appellant checked for CFCs "in-house" or perhaps by

outside testing - he could not say for sure and had no knowledge about the circumstances of the

Haier fridges in 1999, a year in which he was no longer dealing with the foreign supplier

The appellant led no evidence suggesting that a system of random audits of imported shipments

was too expensive, impractical or impossible. The corporation produced no evidence as to what

comparable enterprises do to avoid similar risks. There was no evidence of industry standards

apart from the correct hearsay evidence relating to Danby engaging in product audits of goods re-

ceived from its suppliers (para. 11 supra). Certainly, if only in the months immediately following a

dramatic change in the regulatory regime relating to CFCs, it would be reasonable to confirm that

fridges received did not contain the newly proscribed chemical.

[406] The Crown also cited the decisions in R. v. Island Industrial Chrome Co., [2002] B.C.J.

No. 630 (Prov. Ct.) and R. v. Gulf of Georgia Towing Co. Ltd.,[1979] 3 W.W.W. 84(B.C.C.A.)

for the same proposition, that a system is required for companies to prevent spills or discharges

as human error is inevitable.

[407] In the Crown’s submission it was incumbent upon the defendants to establish appropriate

preventative systems to prevent propane leaks during propane transfers and not vague platitudes

about an overall safe workplace. It was also incumbent upon the defendants to establish appro-

priate oversight of, and supervision of, the drivers who were doing the transfers to ensure that

they complied with code requirements.

[408] The Crown conceded that there was some evidence of a preventative maintenance system

because Mr. McCullough did testify that he did yearly inspections. However, the difficulty with

this suggestion that this was an appropriate preventative maintenance system is that the defend-

ants seem to have delegated this responsibility onto Mr. McCullough alone and there was no one

making sure that he was doing his job properly. Mr. McCullough said that there was no schedule

for the 56 sites that he was working on. When he was cross-examined he testified that he had

conducted the yearly inspection for 54 Murray Road within the year, yet there was no invoice

produced for this inspection. The Crown submits that his answer, that the lack of invoice doesn’t

necessarily mean he did not do the inspection because he may not have written it down, is diffi-

cult to accept because his invoices are very detailed. The problem here, in the Crown’s view is

that there was no system in place to make sure that it got done.

[409] With respect to Unit 861 the Crown submits that there is no evidence about a preventa-

tive maintenance program for this truck or for the hoses to reliably prevent hoses with defects

from being used. Mr. McCullough did not like to work on trucks and the defendants used a com-

pany called ProPar for truck inspections, but no one from ProPar was called to give evidence

about the truck maintenance system. There was an inspection form that was filed as an agreed

exhibit from ProPar regarding an inspection of unit 861 in April of 2008. The form reveals that

the delivery hose was not present during the inspection; therefore, the Crown submits, there is no

evidence that the yard hose was inspected. The Crown pointed to another issue with the hose that

— 91 —

arose during Mr. McCullough’s testimony. Mr. McCullough testified that he and his co-worker

became frustrated with the defendant’s employees who were leaving the hose beside their work

site and at one point his co-worker hid it because he was upset. On July 14, 2008 Mr.

McCullough purchased a protective cover for it. In the Crown’s submission it is astonishing that

this hose is being left on this work site all day without any systemic attention to the integrity of it

and that Mr. McCullough was not aware of anyone being in charge of safety issues such as this

at the site.

[410] The Crown referred to the Rio Algom decision with respect to the issue of foreseeability.

As I have already indicated the test, as stated by the Court of Appeal, was whether a reasonable

man in the circumstances would have foreseen that a propane leak during a transfer or shortly

after could occur. The Crown argues that it is simply a matter of common sense that there is a

possibility of a propane leak through the mechanical failure of the most vulnerable parts of a

propane transfer process, the transfer hose. Further, the Crown submits that the whole regulatory

scheme is structured to highlight the dangers associated with propane leaks as the handling of

propane is inherently dangerous. The fact that propane is also subject to Federal regulation under

the Transportation of Dangerous Goods Act speaks to the dangerous nature of propane. There is

also a Federal Code, as referred to by Ms. Cooke, The Highway Tanks and Portable Tanks for

Transportation of Dangerous Goods Canada Standards Association Code that concerns safe-

guards against propane leaks. The Crown submits that all the regulation has a sole focus, and that

is in preventing propane leaks.

[411] The Crown also referred to the PP03 training workbook which was filed as an exhibit

with respect to the issue of foreseeability. At page 8 of the training booklet in bold capital letters

there is a passage that reads “Remember that you cannot tell by smell if a propane leakage is

within the ignitable mixture range. Treat every release of propane as having the potential for fire

or explosion." The Crown also referred to Mr. Martin’s testimony regarding the safety issues he

would cover including how to detect and contain leaks. In summary the Crown submits that the

entire regulatory systems is designed to drive home to those involved in this industry and that

dangerous leaks of propane are foreseeable.

[412] The Crown made a further point regarding foreseeability. Mr. Bennett testified that there

had been a similar incident in Tacoma Washington as well as a number of other cases. The

Crown submits that the evidence is that there were several prior incidents that were similar. The

Crown also noted that there was an advisory in 2005 that was distributed by the TSSA. The advi-

sory was marked as exhibit 17 in this proceeding and it specifically referred to the fact that the

safety level is significantly reduced when propane is being transferred from one tank to another

tank truck. This advisory was released a full year before the Director’s Order was made.

[413] In addition to additional training the Crown submitted that there was an option for reduc-

ing reliance on truck-to-truck transfers by having a third party deliver propane to the various

sites and that this was possible given Mr. McCullough’s evidence that Primemax became in-

volved in the distribution of propane after the explosion.

— 92 —

[414] The Crown also pointed to an answer Mr. Ben-Moshe gave regarding two OPA audits

that were conducted that turned out to be satisfactory; however, the first audit showed a number

of deficiencies that were corrected later. In the Crown’s submission this statement was mislead-

ing. Finally, the Crown referred to an answer Mr. Ben-Moshe gave to a question about when the

two 2,000 USWG tanks were moved. Mr. Ben-Moshe said that they had been moved a few

months before the explosion but said they were not there all winter. Given that the evidence is

that Mr. McCullough moved the tanks in September of 2007, almost a year before, this cannot be

an innocent mistake and is a lie.

[415] In another statement that was taken by the Ministry of Labour the Crown points to an an-

swer Mr. Ben-Moshe gives regarding Discount Propane where he says that Discount Propane is a

customer that owes him money, yet there were two cheques from the defendants to Discount

Propane in the amounts of $8,056.00 and $1,344.86 shortly before and shortly after the statement

was taken. This, in the Crown’s submission, shows that the defendants were trying to distance

themselves from Discount Propane.

Failure to Provide Oversight of Truck Drivers

[416] The Crown further submits that after Mr. De Leon completed the transfer of propane

from unit 861 to unit 1 he failed to turn off the valves or hit the emergency shut off on unit 861as

he was required to do by regulation. If Mr. De Leon had done these things the incident would not

have occurred. In the Crown’s submission the defendants have not led any evidence that there

was a supervisory system in place to ensure that people who worked for Sunrise, like Mr. De Le-

on, did their jobs in a way that was safe and Mr. De Leon could have been given better tools for

dealing with the situation.

[417] The Crown submits that although Mr. De Leon did complete a period of training his evi-

dence was that once that was completed he didn’t receive any further training and there was no

evidence of a supervisory system to ensure ongoing compliance with regulations. The Crown

was not suggesting that there had to be an on-site supervisor but suggested that there should have

been something in place such as spot checks or updates for employees and workers in an inher-

ently dangerous industry like propane distribution. This ongoing supervision was important in

the Crown’s view given that a significant part of the driver responsibilities was to conduct the

truck-to-truck transfers which were presumptively illegal. The Crown suggests that there should

have been a system of spot checks for driver’s conducting these transfers at the end of the usual

work day and in the middle of the night, especially in light of the fact that Sunrise had been told

that there was a safety issue with the truck-to-truck transfers.

[418] The Crown also submits that truck-to-truck transfers should not have been taking place

given that they were made illegal pursuant to the TSSA Director’s Order issued in October of

2006. In the Crown’s view, if the 30,000 USWG tank had been in place there would have been

additional emergency shut off valves located at the loading dock as well as a remote emergency

— 93 —

stop that would be available if for some reason an employee was not able to reach the emergen-

cy-shut off at the loading dock. Mr. De Leon would have been able to hit the remote emergency

shut off as he was running out if the work on the 30,000 USWG tank had been completed in a

timely manner. Therefore if Sunrise had either complied with the Order not to conduct truck-to-

truck transfers or had operated a proper bulk plant, the incident would not have occurred. The

Crown also notes that even if this facility had been operational as a bulk plant the Director’s Or-

der still required TSSA approval for truck-to-truck transfers.

Position of the Defence

Ministry of Environment Section 14(1) Charge- Information # 10400978

[419] Mr. Adler, on behalf of the defendants, submits that the Crown must prove the specific

corporate defendants actually committed the discharge as opposed to reacting to it. Mr. Adler

referred to the following passages in Sault Ste. Marie:

Offences in which there is no necessity for the prosecution to prove the existence of mens

rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the

accused to avoid liability by proving that he took all reasonable care. This involves con-

sideration of what a reasonable man would have done in the circumstances. The defence

will be available if the accused reasonably believed in a mistaken set of facts which, if

true, would render the act or omission innocent, or if he took all reasonable steps to avoid

the particular event.

And,

The due diligence which must be established is that of the accused alone. Where an em-

ployer is charged in respect of an act committed by an employee acting in the course of

employment, the question will be whether the act took place without the accused's direc-

tion or approval, thus negating wilful involvement of the accused, and whether the ac-

cused exercised all reasonable care by establishing a proper system to prevent commis-

sion of the offence and by taking reasonable steps to ensure the effective operation of the

system. The availability of the defence to a corporation will depend on whether such due

diligence was taken by those who are the directing mind and will of the corporation,

whose acts are therefore in law the acts of the corporation itself.

[420] The defence submits that these defences are known as the defences of reasonable care

and mistake of fact and revolve around the issue of what the “reasonable man” would do. Mr.

Adler submits that a number of other defences would be available such as an intervening cause,

officially induced error and argues that the issue of foreseeability is intertwined with the actus

reus.

[421] Mr. Adler disagreed with the Crown submission that the actus reus of the offence was

admitted by the defendants in the agreed statement of facts and clarified that what was admitted

was that there was an explosion at the 54 Murray Road site that was followed by other explo-

sions and that these resulted in the discharge of contaminants. The defence submits that the fact

— 94 —

that an explosion occurred at the Sunrise location at 54 Murray Road is very different from es-

tablishing that the defendants caused the explosion.

[422] The defence submits that the Crown is required to prove what occurred, that it was fore-

seeable, that Mr. De Leon was passive, and that as a result of his passivity he failed to prevent

the explosion.

[423] The defence submits that the cause of the explosion was a defective hose or bypass pump

and that the incident was beyond the defendants’ control. In the alternative the defendants submit

that they never actively caused the discharge because they were not in a position to control the

manufacturing of the defective goods which resulted in the discharge. Further, Mr. Adler sug-

gests that this event was unforeseen and that the concept of foreseeability should be considered

with respect to the actus reus of the offence.

[424] The defence submits that the sequence of events took place over a matter of seconds and

was set out in the Ontario Fire Marshal’s report. The defence relies on Mr. Bennett’s evidence

that the piping, hoses and pump were intact for this transfer to take place, since the transfer of

propane occurred between unit 861 and unit 1 immediately prior to the incident as well as his

evidence that the leak originated either from a hose or possibly a flexible hose that was part of a

bypass for the tank pump if the pump was left on.

[425] Mr. Adler points to the evidence of Mr. De Leon in order to identify the checks and safe-

ty steps taken before the transfer of propane was undertaken. Mr. De Leon checked the hoses for

leaks and stayed with the trucks during the half hour required to complete the transfer. While the

transfer was occurring he was watching the gauges and the breather with the hydraulic line on

one side of him and the other hoses or the other side of him. At that point Mr. De Leon went to

toward the front of the truck and into the cab and sat down in the front seat and depressed the

clutch to turn off the PTO.

[426] Mr. De Leon then left the driver’s seat and walked back around the front of the cab and

back to the central area between the two tankers and removed the hydraulic lines from unit 861.

At this point there was no indication of a leak. Mr. De Leon went on to disconnect the hose and

toll or fold the hydraulic hose and bring it back to unit one and at that point he went to turn off

the valves for the liquid propane but before he could reach them he saw smoke coming from the

north. This in Mr. Adler’s submission shows that the transfer was complete and that Mr. De Le-

on was very aware of the possibility of leaks. The defence submits that Mr. De Leon was not in-

attentive and that he did not fail to prevent the occurrence.

[427] Mr. Adler submits that the hose was fairly new and that Mr. McCullough tested the

threaded connections of the hose on unit 1 on June 19^th, 2008. Further, the hose was sent to the

Centre of Forensic Sciences and there was no finding of any pre-existing weakness or defect. In

— 95 —

addition to this the Ontario Fire Marshal report indicated that the piping, hoses and pump were

intact for this transfer to take place.

[428] Mr. Adler’s position is that the appropriate conclusion is that the leak started only after

the transfer had been completed and prior to Mr. De Leon’s observation of the fog. No human

activity on the part of the defendants’ caused this. Rather, it was the human activity at the manu-

facturing plant that caused this adverse effect and the defendants had no way of knowing about

the defect, particularly after Mr. De Leon’s inspections and tests before using the hose.

[429] With respect to the ongoing truck-to-truck transfers the defence submits that the corpo-

rate defendants were advised by a government official, Mr. Heyworth, that they could carry on

operations, which included ongoing truck-to-truck transfers, while the larger tank was being built

and installed. Both Mr. McCullough and Mr. Keys testified to this fact.

[430] In the defence submission the defendants demonstrated that they exercised reasonable

care by regularly responding to issues raised at inspections and by hiring and relying upon ap-

propriate licensed personnel\consultants. The defendants also rely on the defence of “officially

induced error” given that Mr. Heyworth had given them permission to carry on business. They

believed that they were acting in a lawful manner at all times.

[431] Mr. Adler argued that the submissions of the Crown amounted to a hindsight approach

regarding why the defendants might have done things differently. Mr. Adler submits that there

was no evidence called by the Crown to establish what industry practices were or how those

practices might have prevented this occurrence.

[432] The defence submits that the cases relied upon by the Crown could be distinguished on

the facts as most involved situations where the defendants had been using faulty equipment and

had some knowledge of the problem that existed, or had undertaken acts that were unsafe. The

defence submits that that was not the case in this situation and points to the Crown’s agreement

that Mr. De Leon should not be faulted.

[433] Mr. Adler submitted that examples of causation/actus reus can be found in Bata, R. v.

Beatty, [2008] 1 S.C.R. 49 (SCC) para. 2,4,6,22,23, 26,45-46 and 69 and also relies upon R. v.

Roy, [2012] SCC 2 and R. v. Petro-Canada, [2009] ONCJ 1979 paras. 9, 26, 27, 47-51, 54, 60 –

63, 65, 67 and 76, which caution that the consequence cannot inform the determination of the

actus reus. The decision in Petro Canada refers to a passage in Justice Libman’s book on regu-

latory offences which discusses strict liability offences and the requirements of the Crown re-

garding proof of the actus reus and the onus on the defence to establish due diligence if the actus

reus has been proven beyond a reasonable doubt at paras. 55-56:

— 96 —

55

Some general comments on the Regulatory court environment and the nature of 'strict lia-

bility' can help put matters into context. Justice R. Libman in Libman on Regulatory Of-

fences in Canada states that;

 "... what seems unreasonable to a court may not appear so to a regulator. Each

represents different institutions with different interests. Regulators are concerned

with reaching practical and administrative results which help achieve the general

public interest goal of the legislation in question. This may also represent a com-

promise solution which is acceptable to the groups involved. Regulatees play a

significant role in the regulation of their activities. Courts of law, on the other

hand, must act upon the basis of the record placed before them, without neces-

sarily all the relevant facts or further factual investigation."

56 Later Libman goes on to say:

 "Public welfare offences prima facie constitute offences of strict liability. They

are neither offences in which mens rea must be proved by the prosecution, either

as an inference from the nature of the act committed, or by additional evidence,

nor are they offences of absolute liability where it is not open to the accused to

exculpate himself or herself by showing that he or she was free of fault....there is

no necessity for the prosecution to prove the existence of mens rea; the doing of

the prohibited act prima facie imports the offence, leaving it open to the accused

to avoid liability by proving that he took all reasonable care. This involves con-

sideration of what a reasonable man would have done in the circumstances. The

defence will be available if the accused reasonably believed in a mistaken set of

facts which, if true, would render the act or omission innocent, or if he took all

reasonable steps to avoid the particular event. These offences may properly be

called offences of strict liability. Strict liability offences have generated a

"unique jurisprudence" and induced criminal courts to incorporate many concepts

from the law of tort. Strict liability currently offers "the best means for the courts

to balance the public interest in advancing public health and safety with the pub-

lic interest in protecting individual rights while equally advancing a viable busi-

ness community". The struggle to achieve this "delicate, difficult balance" gener-

ates complex litigation. However, it provides as well for "certainty, consistency,

and fairness to the prosecution of regulatory offences".

Due Diligence

[434] In the event that I do find that the actus reus has been proven beyond a reasonable doubt

the defence submits that there are several defences that come into play including necessity, rea-

sonable care and due diligence. Mr. Adler referred to John Swaigen’s text at pages 198- 199

which states:“… the test is the same: were the underlying causes of the violation under the con-

trol of the accused, was the accused in a position to prevent the offence, and were the steps taken

to avoid the violation the only ones that were reasonably available under the circumstances?”

[435] With respect to the first issue, whether the underlying issues here were the defendants’

control, the defence submits that the answer is yes and no. The parts (the hoses) were physically

under Sunrise’s control, but the underlying cause of the explosion, a sudden springing of a leak

— 97 —

was not under the defendants’ control because they had nothing to do with the manufacturing of

the part. The defence submits that there was a quality assessment/control program compatible to

the hose’s functions and role and that Mr. De Leon described that system. There was no contra-

dictory evidence called with respect to what Mr. De Leon did in testing the hoses. Therefore,

considering that Mr. De Leon did what was required the underlying cause was not under the con-

trol of the defendants.

[436] With respect to the second issue of whether the accused was in a position to prevent the

offence, Mr. Adler submits that the defendants were not in a position to prevent the explosion.

Again, the defendant submits that Mr. De Leon carried out the best prevention techniques and

the tests from the Centre of Forensic Sciences did not reveal any pre-existing defect. The transfer

process went well and thereafter the fog and explosions occurred in rapid-fire succession.

[437] Finally, with respect to the third issue the question is, were there steps taken to avoid the

violation the only ones that were reasonably available under the circumstances? The defence

submits that those were the steps taken by Mr. De Leon and there was no evidence called by the

Crown as to what someone in the industry would have done in the circumstances given how

quickly everything unfolded, as confirmed by Mr. Bennett.

[438] Mr. Adler submits that there is another important element to consider which is foreseea-

bility and that in this case there was a sudden, unforeseen leak in a hose that had been tested and

was functioning perfectly yet somehow life threatening fog formed quickly.

Truck-to-Truck Transfers – Officially Induced Error

[439] The defendants submit that Mr. Heyworth gave them permission to continue to conduct

truck-to-truck transfers. Mr. Heyworth said that he specifically told the defendants to comply

with the Director’s Order and said that he suspected that these types of transfers were going on

and that he did spot inspections by driving by the site. Yet, he also admitted speaking to Mr.

Ben-Moshe, who confirmed that they were making use of truck-to-truck transfers and did noth-

ing about it. Mr. Heyworth did not even attempt to get confirmation of compliance.

[440] Mr. Heyworth did admit to saying that the defendants could carry on business at the

meeting concerning the 30,000 USWG tank. The defendants submit that the statement by Mr.

Heyworth that he did not have the authority to give them permission to conduct truck-to-truck

transfers is a given that he had the authority to revoke an Order as set out in s. 21(3). The de-

fendant submits that Mr. Heyworth lied about anything connected to the issue and that the proof

of this is in his schedule, his evasiveness, his late disclosure/admission to being at the meeting,

his being copied with the 30,000 USWG application and by taking over the inspection for this

tank.

— 98 —

[441] The defendant relies on the decisions in R. v. Jorgensen, [1995] 4 SCR 55 and in Levis

(City) v. Tetrealt, [2006] 1 SCR420 and R. v. Cancoil Thermal Corp. [1986] O.J. No.

290(S.C.O.) with respect to officially induced error.

Due Diligence Regarding Equipment – Preventative Maintenance

[442] The defendants submit that the evidence of preventative maintenance is to be found in the

evidence of Mr. McCullough. The defendants submit that Mr. Heyworth’s evidence is not credi-

ble as he claimed that he suspected the truck-to-truck transfers were going on and did spot

checks by driving by the site yet did nothing to attempt to gain confirmation that the defendants

were not doing these. In fact, he spoke to Mr. Ben-Moshe who said they were doing these types

of transfers, yet he did not issue a report. Further, the TSSA inspector Mr. Heyworth had in-

spected unit 861 in late June of 2008.

[443] Mr. Adler points to the Canadian Tire decision and Justice Hill’s comments regarding the

standard of care required at para. 85 and submits that the court must guard against the distorting

influences of hindsight. It reads as follows:

85

Accidents or innocent breaches of a regulatory offence inevitably occur. An abso-

lute liability offence is not at issue here. In assessing the efficacy of a due diligence de-

fence, the court must guard against the correcting, but at times distorting, influences of

hindsight. In considering the defendant's efforts, the Court "does not look for perfection"

(R. v. Safety-Kleen Canada Ltd. (1997), 114 C.C.C. (3d) 214 (Ont. C.A.) at 224) nor

some "superhuman effort" on the defendant's part (R. v. Courtaulds Fibres Canada

(1992), 76 C.C.C. (3d) 68 (Ont. Prov. Ct.) at 77). If the facts suggest a discoverable caus-

ative flaw "could readily" have been remedied, due diligence will fail: R. v. Rio Algom

Ltd., supra at 249, 252. In this regard, in the regulation of the environment, it was ob-

served in R. v. Alexander, [1999] N.J. No. 19 (C.A.) at para. 16, that: "As a matter of

principle, it should be observed that arguments based on the expense associated with

compliance cannot generally be sustained".

[444] Mr. Adler also referred to the decision in R. v. Lonkar Well Testing Limited, 2009 ABQB

and submitted that the situation in this case is similar. In that case a worker was killed after re-

moving some bolts from a meter run which resulted in a low oxygen level in his work place. The

trial judge found the company guilty of failing to ensure that all steps were taken for the safety of

the worker and was not persuaded that the company had exercised due diligence. On appeal the

court found that the trial judge had engaged in speculation regarding safety practices that could

have prevented the death. In the case before the court the defendants submit that there was a

structural defect in a part not manufactured by the defendants which was tested by the defendants

and was found to be working properly.

[445] The defendants also refer to the decision in R. v. Sunshine Village Corp, 2010 ABQB 493

regarding foreseeability. In that case a worker at the ski resort was killed when he was sitting on

— 99 —

the top portion of a ski lift when it entered the main station at the bottom of the hill. The appeal

judge found that the trial judge had erred on the issue of foreseeability at para 93:

93 Like the situation in Lonkar, in my view the Trial Judge erred by imposing a requirement based on

hindsight. I find that the three employees who were properly trained and aware of the safety requirements

required in riding the work carrier but for some unknown reason continued to proceed in the work carrier

contrary to their training and instructions. The work procedures, in place at the time and well known to all

three employees, were not followed at the critical times by the employees. Sunshine was not required to

achieve a standard of perfection. In my view the evidence at trial illustrated they had a proper system in

place at the time and took reasonable steps to ensure that it operated effectively. I have reviewed the case

law and the facts and I find that Sunshine has met the test for the defence of due diligence.

Due Diligence - Oversight of Drivers

[446] The defendants submit that the evidence of Mr. De Leon makes it clear that there was

significant training and instruction provided to him and that he testified to this in relation to the

procedures he used in the transfer process prior to the explosion. The defendants submit that it

would be unreasonable to “double up” the number of employees to provide this oversight and

supervision. In this situation the defendant submits that Mr. De Leon simply panicked, he was

not pre-occupied with personal matters and was doing what he needed to do to safely complete

the transfer.

30,000 USWG Tank

[447] The defendants submit that they did pursue the installation of the tank in a diligent mat-

ter. The evidence of Mr. McCullough was that it would have been more dangerous to proceed

with the installation in the wet weather. Admittedly there were other issues in terms of Mr.

McCullough’s availability as his was a small firm; however, there is a small niche of people who

do this type of work. Mr. Adler points out that the first installation at the 54 Murray Road site

took over a year and this installation was just about finished at 16 – 17 months. Finally, Mr. Ad-

ler submits that the defendants have established that they were duly diligent and did have preven-

tative systems in place.

Crown Response to Defence Submissions- Information # 10400978

[448] In answer to the defence submission that there was not any evidence of any previous

leaks, on the issue of foreseeability, the Crown submits that there is such evidence that was

found in exhibit 45, which are a number of invoices of Mr. McCullough’s that speak to leaks in

valves, pumps, load lines and swivels. The Crown also points out that there was no evidence that

the hose used that was involved in the explosion was new or even nearly new. The only thing

that was determined by Mr. Bennett was that the hose involved in the explosion was manufac-

tured after December of 2006. Mr. McCullough also testified that the hose that he changed on

June 19^th, of 2008 was the delivery hose on unit 1 and not the yard hose, so that is not evidence

of the yard hose being brand new.

— 100 —

[449] The Crown takes issue with the defence submission that Mr. Bennett’s evidence attribut-

ed the leak to a manufacturing defect that was responsible for the leak. Mr. Adamson, on behalf

of the Crown, asked Mr. Bennett about the hose as follows:

Q. And were you able to conclude anything from what you recovered about the state of that hose before

the event?

A. I submitted that hose to the Centre for Forensic Sciences for detailed examination, and they were unable

to provide any information regarding the status of that hose prior to that incident.

[450] Mr. Adamson submits that this language is repeated in the Ontario Fire Marshal’s report

at page 101, where Mr. Mustard, one of the engineers who assisted in the preparation of the re-

port said he could not determine if the hose was damaged or not prior to the explosion. There-

fore there was no evidence as to whether or not there was a defect. Mr. Adamson submits that the

evidence is that there were only two possible sources of the leak - the hose or the components of

the pump and that was as far as the evidence goes. There could be any number of causes and it

would be speculation to say that it was a manufacturing defect.

[451] The Crown submits that the evidence of the pump as a possible leak was discussed in Mr.

Bennett’s evidence in chief,

Q. #2, is that -- you’re circling the bypass valve?

A. Yes.

Q. That’s #2.

A. Now, on tanker 861, we didn’t recover this part of the system, the bypass system, so we were

unable to analyze that part.

Q. Okay. And when you say, again, for the record, when you say the bypass system, you mean,

you’re pointing to the bypass valve itself?

A. The bypass valve itself, and the hosing between it and the tank. So I’ll identify that as #3.

Q. Yes, if you could just circle what it was you didn’t recover, and identify that as #3. So just to

be clear, is it both the bypass valve, and that hosing that wasn’t recovered, or just the hosing?

A. The bypass valve and the hosing weren’t recovered.

[452] The Crown submits as those components were not recovered there was no opportunity to

analyze them and no information available as to what, if any, defect there was. Mr. Adamson al-

so pointed to a portion of the cross-examination where the pump was discussed and Mr. Bennett

made it clear that those parts were not found and examined.

[453] Mr. Adamson, on behalf of the Crown also made submissions with regard to the addi-

tional defences the defendants raised. With regard to officially induced error the Crown relies on

the Supreme Court of Canada decision in Levis (City) v. Tetreault [2006] S.C.C. 12 which states

that this defence is only available in a very narrow set of circumstances. That is that the defend-

ant is under a misapprehension about the state of the law, not about the state of the facts. In the

case before the court the Crown submits that there is no evidence that the defendants continued

truck-to-truck transfers because of any error of law. At best that question was whether or not Mr.

— 101 —

Heyworth was going to shut them down and that was not a legal question but a question as to

how Mr. Heyworth intended to exercise his discretion as an inspector.

[454] Lastly, the defence of impossibility is also referred to in Syncrude at para. 129 and the

court pointed out that this defence is essentially the flip side of necessity in that there was no way

to avoid doing the act. The Crown submits that this defence fails because there was a reasonable

legal alternative in this case.

Crown Position Legal EPA Breach of Order Charges –Information # 0900354

[455] As I indicated at the beginning of this judgment Sunrise Property Group is charged with

five counts of failing to comply with a provincial officer’s Order contrary to s. 186(2) of the EPA

and Mr. Ben-Moshe and Mr. Belahov are charged with being directors of a corporation with fail-

ing to take all reasonable care to prevent the Corporation from contravening a provincial of-

ficer’s Order contrary to section 194(1) (f) of the Act. It is common ground that the defendants

did not comply with the Order. While the Order was admitted on consent the Crown also notes

that it is an official document pursuant to s. 175(1)(a) of the Act and is admissible on that basis.

The Crown made some general submissions before going through each of the items in the Order.

[456] The Crown submits that the order was served personally as it was required to be and that

it was delivered to the defendants. This is admitted in the agreed statement of facts.

Section 186(1) reads as follows;

186. (1) Every person who contravenes this Act or the regulations is guilty of an offence. R.S.O.

1990, c. E.19, s. 186 (1).

Exception

(1.1) Subsection (1) does not apply to a contravention of section 14 unless the contravention

causes or is likely to cause an adverse effect. 2005, c. 12, s. 1 (54).

Offence re order

(2) Every person who fails to comply with an order under this Act, other than an order under sec-

tion 99.1, 100.1, 194. (1) Every director or officer of a corporation has a duty to take all reasona-

ble care to prevent the corporation from, 150 or 182.1, is guilty of an offence. R.S.O. 1990,

c. E.19, s. 186 (2); 2005, c. 12, s. 1 (55).

(2) Every person who has a duty under subsection (1) and who fails to carry out that duty is guilty

of an offence. R.S.O. 1990, c. E.19, s. 194 (2).

Onus

(2.1) If a director or officer of a corporation is charged with an offence under subsection (2) in

connection with a specific contravention of the corporation, the director or officer has the onus, in

the trial of the offence, of proving that he or she carried out the duty under subsection (1) in con-

nection with that contravention. 2005, c. 12, s. 1 (66).

[457] Mr. Jacob argued these breach charges on behalf of the Crown and referred to the pur-

pose of the Act which is set out in section 3 as follows;

3. (1) The purpose of this Act is to provide for the protection and conservation of the natural en-

vironment. R.S.O. 1990, c. E.19, s. 3.

— 102 —

The authority for issuing an Order is found in section 157(1)(a) of the Act,

Order by provincial officer: contraventions

157. (1) A provincial officer may issue an order to any person that the provincial officer reasona-

bly believes is contravening or has contravened,

(a) a provision of this Act or the regulations;

[458] The Order that Ms. White issued was admitted on consent as an exhibit. The Order was

issued to two companies, 2094528 Ontario Inc. and Sunrise Propane on August 13, 2008, three

days after the explosion. There were eight work items that needed to be addressed,

1.

2.

Provide written confirmation that the company is willing to comply with the

requirements of the Order- compliance date- August 13, 2008 by 5 p.m.

Provide notification if for whatever reason the company cannot or is unwilling to comply

with the Order verbally and in writing- compliance date -within 12 hours of August 13,

2008.

3.

4.

Retain the services of one or more qualified persons to carry out the work

required by the Order compliance date- August 13, 2008 by 5:00 p.m.

Provide written verification that one or more qualified persons had been hired to carry

out the work required by the Order – compliance date -August 13, 2008 by

p.m.

5:00

5.

Clean-up of the residential area around 54 Murray Road – compliance date –

effective immediately

6.

7.

Develop written clean-up plan – compliance date - August 13, 2008 by 5:00 p.m.

Provide written copies of the sampling results to the provincial officer and Dr. Shapiro

of Toronto Public Health – compliance date – effective immediately, and

Develop clean-up plan for 54 Murray Road within 24 hours of the Ontario Fire Mar

shal releasing the site.

8.

[459] 2094528 Ontario Inc. was only responsible for items 2, 3 & 4, 7 and 8. Sunrise Propane

was responsible for all items in the Order. The Crown submitted that it is important for corpora-

tions to submit information to the Ministry of the Environment In order to reduce risks to the

public. This was addressed by the Ontario Court of Appeal in R. v. Mac’s Liquid Disposal

(1982), [1987] O.J. No. 884 (Ont. C.A.),

It must be remembered that the forms required by the Environmental Protection Act are not in-

tended to induce anyone to act upon them. Rather they fulfil an important reporting function that

permits the Ministry to properly oversee and regulate the management of liquid wastes.

[460] This statement ties into the general principle that public welfare legislation should be in-

terpreted with a purposive approach and should be interpreted broadly, R. v. Ontario (Ministry of

Labour) v. Hamilton (City), [2002] O.J. No. 283.

[461] The Crown argues that all Orders are presumptively valid. Authority for this is found in R

v. Consolidated Maybrun Mines Ltd., where the Supreme Court of Canada found that a trial court

lacks jurisdiction to consider the merits of an administrative Order where the legislature has es-

tablished a separate administrative appeal process for that purpose. That case involved a charge

— 103 —

against an accused for failing to comply with an administrative Order under the Environmental

Protection Act. The accused challenged the Order issued at trial and the jurisdiction of the Direc-

tor to issue the Order. The Supreme Court held that this constituted a collateral attack on the Or-

der at paras. 52 to 65:

52 In summary, the question whether a penal court may determine the validity of an administra-

tive order on a collateral basis depends on the statute under which the order was made and must be

answered in light of the legislature's intention as to the appropriate forum. In doing this, it must be

presumed that the legislature did not intend to deprive a person to whoman order is directed of an

opportunity to assert his or her rights. For this purpose, the five factors suggested by the Court of

Appeal, as reformulated here, constitute important clues for determining the legislature's intention

as to the appropriate forum for raising the validity of an administrative order.

Application of the Principles to the Case at Bar

53 The purpose of the Environmental Protection Act is "to provide for the protection and con-

servation of the natural environment" (s. 2). It accordingly confers on the directors appointed by

the Minister under the Act a certain number of powers of a considerable scope which are essential-

ly preventive in nature. Thus, under s. 7, the Director is authorized to issue a stop order requiring

the cessation of any activity resulting in the discharge of contaminants that constitute, or the level

of which constitutes, a danger to human life or health. Furthermore, the construction or alteration

of any plant, structure or apparatus that may discharge a contaminant into the environment, or any

alteration of a process or rate of production entailing the discharge of contaminants into the env i-

ronment, is subject to prior approval by the Director by means of a certificate (s. 8). Finally, s. 17

authorizes the Director to order the owner of, or person who controls, an undertaking or property

to take steps to prevent or reduce the risk of environmental contamination. These are clearly broad

powers that are, where ss. 7 and 17 are concerned, subject only to the condition that the Director

base such a decision on reasonable and probable grounds that there is a risk of contamination

based on the definition of the word "contaminant" in s. 1 of the Act.

54 The very fact that the Act gives the Director a certain number of powers of a preventive na-

ture, including those set out in s. 17, which are at issue here, is a clear indication that the purpose of

the Act is not just to remedy environmental contamination, but also to prevent it. This purpose

must, therefore, be borne in mind in interpreting the scheme and procedures established by the Act.

55 It is true that the Act also has a remedial dimension. Thus, it confers on the Minister a power,

now exercised by the Director under the present s. 17 (R.S.O. 1990, c. E.19), to order repairs where

a contaminant is emitted or discharged into the environment (s. 16). This power to order repairs,

like the fact that s. 143 authorizes the government, as it did in the case at bar, to take any necessary

action to protect the environment and bring proceedings to recover any amounts disbursed, cannot

be read as reducing the importance of the Act's preventive purpose. On the contrary, it is my view

that s. 143 shows the concern of the legislature with giving the government the tools needed to

guarantee prompt compliance with orders issued under the Act, since a person to whoman order is

directed could be required to bear the cost of any steps he or she neglects or refuses to take.

56 However, a person affected by a decision of the Director is not without recourse under the

Act. On the contrary, ss. 120 et seq. of the Act provide for the creation of an Environmental Appeal

Board, whose sole function is to hear appeals from decisions of the Director. In particular, s. 122

authorizes a person to whom an order is directed to appeal to the Board within 15 days after service

of the order. Sitting as a panel of three, the Board has full power to review the Director's decision

and take any action it deems necessary and may substitute its own opinion for that of the Director

(s. 123). It is, therefore, a de novo process whose purpose is to permit the Director's decision to be

reviewed in light of submissions by the affected party. Furthermore, should this party not be satis-

fied with the outcome, he or she has a right of appeal to the Divisional Court on a question of law,

and a right of appeal to the Minister on any other matter.

— 104 —

57 In establishing this process, the legislature clearly intended to set up a complete procedure,

independent of any right to apply to a superior court for review, in order to ensure that there would

be a rapid and effective means to resolve any disputes that might arise between the Director and the

persons to whom an order is directed. The decision to establish a specialized tribunal reflects the

complex and technical nature of questions that might be raised regarding the nature and extent of

contamination, and the appropriate action to take. In this respect, the Board plays a role that is es-

sential if the system is to be effective, while at the same time ensuring a balance between the con-

flicting interests involved in environmental protection.

58 Finally, the Act establishes a penal remedy for failing to comply with an order issued by the

Director (s. 146(1a)). The question in the case at bar is whether a person who has not challenged an

order through the Board's appeal process may, once charged, raise the validity of the order by way

of defence.

59 Since the legislation does not give an express answer to this question, it is necessary to look

for a solution that appears most consistent with the legislature's intention. It is clear from a review

of the Environmental Protection Act that its purpose is not simply to repair damage to the environ-

ment resulting from human activity, even if we assume that repairs will always be possible, but

primarily to prevent contamination of the province's environment. Such a purpose requires rapid

and effective means in order to ensure that any necessary action is taken promptly. This purpose is

reflected both in the scope of the powers conferred on the Director and in the establishment of an

appeal procedure designed to counterbalance the broad powers conferred on the Director by afford-

ing affected individuals an opportunity to present their points of view and assert their rights as

quickly as possible. As Kurisko J. stated in this case (at p. 341):



It is vital that enforcement of the director's orders under s. 17 be addressed speedily,

expertly and effectively while at the same time respecting the private rights and inter-

ests of the individuals to whomsuch orders apply. This has been achieved by the en-

actment of the three-tier appeal structure set out in s. 123.

60 In the case at bar, the appellants elected to disregard not only the order, but also the appeal

mechanism, preferring to wait until charges had been laid before asserting their position. Eleven

years later, these proceedings are still in progress, and the appellants are still arguing that the order

ought never to have been issued. It seems clear to me that the Board could have dealt with this en-

tire matter more rapidly and more sensibly. The appellants' attitude forced the government to u n-

dertake the necessary measures to prevent a PCB spill. While the Act does contemplate such

course of action, it cannot be said to encourage it. I agree with Laskin J.A. of the Ontario Court of

Appeal that to permit the appellants to collaterally attack the order at the stage of penal proceed-

ings would encourage conduct contrary to the Act's objectives and would tend to undermine its ef-

fectiveness.

61 Furthermore, in this connection, the appellants cannot raise their right to make full answer

and defence without showing that the Act is deficient in this respect or that the government's ac-

tions had the effect, in practice, of depriving them of this right. Yet, there is no indication that the

Act's appeal process was inadequate or that the Board was powerless to remedy the deficiency that

they now raise against the order.

62 This leads me to the factor regarding the nature of collateral attack, which I discussed above.

At trial, the appellants sought to show that the order was invalid because it could not be based on

reasonable and probable grounds to believe, as required by s. 17, that there was a danger of envi-

ronmental contamination. In accepting this submission, the trial judge reviewed the expert evi-

dence on the dangers of PCBs and on the best way to prevent those dangers. On the basis of this

evidence, he found that the order to construct a storage area for the transformers was unfounded,

as was the order to clean the concrete surfaces stained with contaminated oil. In his opinion, the

cleaning and chipping could cause the release of contaminated particles and would therefore con-

stitute a more serious environmental risk. However, in my view, there is no doubt that this is the

very type of question the Board was established to answer. As mentioned above, whether the issue

is lack of jurisdiction ab initio or loss of jurisdiction is irrelevant. What is important is on whom

the legislature intended to confer jurisdiction to hear and determine the question raised. In the case

— 105 —

at bar, the answer to this question is not in doubt. The legislature set up a specialized tribunal to

hear questions relating to the environment and to take the appropriate action necessary to prevent

it from being contaminated. I do not see how a penal court could be permitted to answer such

questions in lieu of the Environmental Appeal Board, which was established precisely for this

purpose, without undermining the scheme set up by the Act.

63 All that remains to be considered is the final factor suggested by Laskin J.A.: the penal con-

sequences for the accused. Here, the Act provides for a fine of not more than $5,000 for an indi-

vidual and of not more than $25,000 for a corporation. This maximum amount for a first offence is

doubled in the event of a subsequent offence. Although these amounts are not insignificant, no

minimum fine is prescribed and imprisonment is not an option, at least as a direct sanction for vio-

lating the Environmental Protection Act. However harsh these measures might be considered to

be, they are not sufficient to justify a conclusion that the legislature's intention was to authorize

collateral attacks to the detriment of the Act's objectives and the Board's jurisdiction.

64 In concluding, I cannot refrain from pointing out that the appellants, by systematically refus-

ing to co-operate with the Ministry of the Environment and to participate in any dialogue, have

shown an inflexible attitude for which they must now bear the consequences. Such an attitude

serves neither the interests of society in environmental protection nor the interests of those who

are subject to administrative orders. While penal sanctions will, perhaps, always be a necessary

component of any regulatory scheme, they must not become the principal or a customary instru-

ment for relations between the government and its citizens.



VI.

Disposition

65 Considering the purpose of the Environmental Protection Act and the procedural mecha-

nisms established to guarantee that a person to whom an order is directed can assert his or her

rights, I conclude that persons charged with failing to comply with an order issued under the Act

cannot attack the validity of the order by way of defence after failing to avail themselves of the

appeal mechanisms available under the Act. The trial judge accordingly lacked jurisdiction to rule

on the validity of the order.

[462] The Crown submits that this decision makes it clear that there cannot be a collateral at-

tack on the Order. The Crown also referred to Libman on Regulatory Offences in Canada, (Vic-

toria, BC: Earlscourt Legal Press Inc., Update 20, 2011) at page 7-235 which refers to due dili-

gence and collateral attacks on administrative orders. The text reads as follows:

To successfully establish a due diligence defence, defendants are bound to accept the validity of

the administrative order and show that they attempted to comply with it. It is not open to a party

to claim due diligence by claiming that the order was unreasonable and then refusing to comply

with it.

[463] Given that the defendants didn’t avail themselves of the appeal procedure the Crown

submits that they are not permitted to launch a collateral attack on the Order at this trial.

[464] The Crown also submits that the breach charges are continuing offences. There was an

ongoing legal obligation on the defendants beyond the compliance deadlines that were on the

face of the Order. The offence period runs from August 14, 2008 to August 24, 2008 as the latter

date is when the city had completed the clean-up.

[465] Continuing offences were discussed by the Court of Appeal in R. v. Rutherford, [1990]

O.J. No. 136(Ont. C.A.). In that case the appellant was convicted of two counts of refusing to

— 106 —

comply with Orders under s. 93 of the Power Corporation Act regarding his work as an electrical

contractor. In Rutherford the court did not find that there was a continuing offence because the

work had been completed. However the court considered the decision in R. v. Industrial Appeals

Court, [1965] V.R. 615 (Victoria S.C.) which discussed continuing offences as follows;

A continuous or continuing offence is a concept well known in the criminal law and is of-

ten used to describe two different kinds of crime. There is the crime which is constituted

by conduct which goes on from day to day and which constitutes a separate and distinct

offence each day the conduct continues. There is, on the other hand, the kind of conduct,

generally of a passive character, which consists in the failure to perform a duty imposed

by law. Such passive conduct may constitute a crime when first indulged in but if the ob-

ligation is continuous the breach though constituting one crime only continues day by day

to be a crime until the obligation is performed.

[466] Given that the defendants did not comply with their obligations there was a continuing

offence. Further support can be found in the Ontario Court of Appeal’s decision in R. v. Pickles,

[2004] O.J. No. 662 (Ont. C.A.). The Court commented favourably on the Rutherford decision

and found that it is easier to find a continuing offence when there are daily penalties involved.

Under the EPA every corporation and individual convicted of an offence under s. 186 is liable to

a fine for each day or part of a day upon which the offence occurs or continues.

[467] Another Ontario Court of Appeal case dealing with this issue is Her Majesty the

Queen(Workplace Safety and Insurance Board) v. Hamilton Health Sciences Corporation,

[2000] O.J. No. 3929 (Ont. C.A.). In this case the issue was whether an offence under the Work-

place Safety and Insurance Act was a continuing offence for the purpose of determining whether

the information was properly laid within the limitation period. The employer was charged with

failing to notify the Board within three days after learning of an employee’s accident. The Court

held that the interpretation that best ensures the objectives of the legislation are achieved by en-

suring that the duty is placed on the employer to report to the Board at para. 14 as follows;

In my view, the interpretation of s. 21(1) that best ensures that the objects of the legislation are

achieved emphasizes the employer's duty to report rather than the timeliness of the reporting. In s.

21(1), the Legislature has placed a duty on the employer to report the injury to the Board and pro-

vided a reasonable (three-day) grace period for the employer to comply with the duty. It is my

view that the offence continues until the employer complies with its reporting obligation. Any oth-

er interpretation gives an employer who fails to meet the three-day deadline an incentive to hold

off reporting entirely or at least for six months, in the hope that the Board will not learn of the in-

jury from another source within six months. If the employer succeeds, it will at worst face the

$250 administrative penalty imposed by the Board. Such an interpretation of the legislation would

hardly encourage compliance and could defeat the statutory scheme. An interpretation that would

lead to such a result should be avoided if possible.

[468] The Crown submits that the purpose for the requirements in items 1, 2, 4 and 6 were not

the timeliness of submitting the required information, but to put an obligation on the defendants

to report the information to the Officer in a clear and timely manner so that appropriate alternate

steps could be taken to get people back into their homes and to ensure businesses in the area

could continue to operate as soon as possible.

— 107 —

Count 1. Written confirmation that the company is willing to comply with the require-

ments of the Order (Item 1) - compliance date - August 13, 2008 by 5 p.m.

[469] The Crown submits that at the time the Order was issued Ms. White had already received

verbal verification from Mr. Belahov that Hazco had been hired and that the company would do

what was legally required of them. Therefore, the intent of this item was to get written confirma-

tion from the defendants. Given that the defendants didn’t comply with the Order the actus reus

of the offence has been proven beyond a reasonable doubt.

[470] The Crown acknowledges that there wasn’t much time to comply with this item number

given there were only 19 minutes left by the time it was served at 4:41 p.m. However, the obli-

gation continued until it was done. This item was never complied with and the Crown submits it

would have been easy to do so as the evidence of Ms. White was that an e-mail or fax would

have sufficed as long as there was company information on it and a signature of someone author-

ized to act on behalf of the company.

Count 2. Provide notification if, for whatever reason, the company cannot or is unwilling to

comply with the Order (Item 2) verbally and in writing- compliance date -within 12 hours

of August 13, 2008-

[471] The Crown submitted this was an important requirement as the work needed to be done

quickly, and if the defendants were not going to do it arrangements had to be made forthwith,

and that this obligation was continuing. Providing notice of a lack of willingness to comply with

the Order was never intended to relieve the defendants of their legal obligations. At some point

the counsel at the Ministry was notified that the defendants would not be able to comply verbally

but this was never confirmed in writing.

[472] Mr. Warren testified that he did not provide any written confirmation and was not aware

of anyone having done so. The Crown submits that it is clear from the wording of the Order itself

that each item is severable. Therefore, even if I find that the defendants have complied with this

item they are still required to comply with the other items. It is the Crown’s position that this

item was not complied with and that this count has been proven beyond a reasonable doubt.

Count 3. Provide written verification that one or more qualified persons had been hired to

carry out the work required by the Order (Item 4) – compliance date - August 13, 2008 by

5:00 p.m.

[473] Ms. White testified that the purpose of this item was to get written confirmation that the

defendants had retained someone that was going to do the work. The point of the Order was to

have workers that were able to deal with the clean-up of asbestos and propane containers. It was

up to the defendants to decide how involved they wished to be in that process. Ms. White testi-

fied that on August 14, 2008 she was advised that the defendants had not yet discussed the Order

— 108 —

with their lawyers and by this time the compliance dates for items 1,2,3,4 and 5 had passed. It

was the evidence of Mr. Hicks that Hazco had the ability and the expertise to carry out the work

items required by item 3. Although Mr. Hicks had received a verbal commitment from the de-

fendants to meet and sign documentation the meeting never occurred. Mr. Warren’s evidence

was that his interpretation was that written verification was not required. The Crown submits that

this evidence proves the actus reus of the offence.

Count 4. Failure to clean-up the residential area around 54 Murray Road (Item 5)- compli-

ance date –effective immediately August 13, 2008

[474] Ms. White testified that this involved taking reasonable measures to clean-up the natural

environment. The area was specified in the Order as being located within a radius of one kilome-

tre of the site including public, residential and commercial properties. Her expectation was that

that area would be inspected for debris. It had been determined that the majority of the debris had

been deposited in an easterly direction affecting residential areas and some went in a westerly

direction into a cemetery.

[475] Ms. White used the word “continue” in this item as she was under the impression that the

defendants had already started the clean-up when she observed Mr. Hicks conducting air sam-

pling on and off site. Mr. Belahov had advised Officer White that the defendants had taken steps

to hire Hazco to do what was legally required of them. The City of Toronto started the clean-up

on August 16, 2008 and completed the work on August 24, 2008. On August 25, 2008 Mr. War-

ren advised Officer White that the insurance issues were still unresolved.

[476] The Crown submits that the defendants did take initial steps to start a clean-up effort that

were terminated and therefore the actus reus of this count has been proven beyond a reasonable

doubt.

Count 5 – Failure to Submit a Residential Clean-Up Plan (Item 6) – compliance date Au-

gust 14, 2008.

[477] The Residential Clean-Up Plan was defined in the Order and required that a number of

issues be addressed including ambient air monitoring, waste removal and special procedures for

removal asbestos and asbestos-related material and a proposed schedule for submission of a final

report on the clean-up. Ms. White received an email from Mr. Hicks which was a good basic out-

line, but there was information missing. This item formalized her request of Mr. Hicks. The

email was sent before the Order was made.

[477] The Crown submits that the evidence of Officer White that she did not receive a plan

proves the actus reus of this count beyond a reasonable doubt and notes that it would not have

been onerous for the defendants to comply with this item. Officer White testified that the plan

could have been contained in an email similar to the one Mr. Hicks had sent on August 12, 2008

if it contained all of the requested information.

— 109 —

Counts 6 and 7 – Failure of a Director of a Corporation to Take all Reasonable Care to

Prevent the Corporation from Contravening an Order

[479] The Crown submits that the relevant sections of the Environmental Protection Act for

these charges are as follows;

Duty of director or officer

194. (1) Every director or officer of a corporation has a duty to take all reasonable care to prevent

the corporation from,

(f) contravening an order under this Act, other than an order under section 99.1, 100.1, 150 or

182.1. 2005, c. 12, s. 1 (65); 2009, c. 12, Sched. G, s. 25; 2010, c. 16, Sched. 7, s. 2 (89-91).

Offence

(2) Every person who has a duty under subsection (1) and who fails to carry out that duty is guilty

of an offence. R.S.O. 1990, c. E.19, s. 194 (2).

Onus

(2.1) If a director or officer of a corporation is charged with an offence under subsection (2) in

connection with a specific contravention of the corporation, the director or officer has the onus, in

the trial of the offence, of proving that he or she carried out the duty under subsection (1) in con-

nection with that contravention. 2005, c. 12, s. 1 (66).

[480] The Crown submits that section 194(2.1) was added to further clarify the actus reus for

the offence in s. 194(2) and does not require the Crown to prove that the defendants failed to take

all reasonable care to prevent the corporation from contravening an Order. The section preserves

the due diligence onus of a defendant to prove that they took all reasonable steps to prevent the

contravention. As the defendants have admitted being directors of the Corporation during the rel-

evant time period the Crown submits that the actus reus for both offences has been proven be-

yond a reasonable doubt.

Position of the Defence Regarding the Breach Orders -Information # 0900354

[481] Mr. Adler submits that the defendants have shown, on a balance of probabilities, that they

exercised due diligence with respect to the breach charges.

The Defence of Impossibility

[482] Mr. Adler submits that the Order of the provincial officer was impossible to comply with

because of the compliance times and that the defendants were entitled to rely on the advice of

Mr. Warren regardless of whether or not it was correct.

[483] The defendant submits that careful consideration must be given to the reasonableness of

the Order and the amount of time provided for compliance, particularly given the vast scope of

— 110 —

clean-up work ordered. The Order was served upon the defendant’s counsel on August 13, 2008

at 4:41 p.m. and the directors received it at some point between 5:00 and 6:00 p.m. on the same

date.

[484] Further, Mr. Adler submits that given that s. 157(3) of the EPA provides that, “The order

may require the person to whom it is directed to comply with any directions set out in the order

within the time specified…” and therefore, the issue of whether or not the compliance time limits

can be altered or made “more flexible” through custom or informal practice, is truly moot. He

argues that the only way an amendment to the time limits set out in the Order can be made is

through written notification to the defendants pursuant to s. 157.2 and this was never done. For

ease of reference I have set out the section in its entirety. It reads as follows:

157.2 (1) An order issued under section 157 or 157.1 may, by order, be amended or revoked by

the provincial officer who issued it or by the Director.

Same

(2) A provincial officer or Director who amends or revokes an order shall give written notice of

the amendment or revocation to the person to whomthe order is directed. 1998, c. 35, s. 1

[485] Mr. Adler submits that the provincial officer never did provide notice that she was pre-

pared to extend the date for complying with the Order. In serving an Order with such a short

compliance time the provincial officer foreclosed the opportunity for the defendants to comply

and that the defendants were entitled to rely on a strict reading of it. The Order failed to comply

with the statute. The defendant submits that the issue in Consolidated Mines was different as in

that case the Order never should have issued.

[486] Mr. Adler also makes the point that there is no provision in the legislation for a “Report”

to be attached to an Order. A reading of section 157 and 157.1 reveals no mention of reports and

as a provincial officer is a creation of statute they can only do what the statute authorizes them to

do. Further Mr. Adler notes that there is provision in the Act for reports in other locations but in

different contexts. He also points to s. 127(1) of the Act that makes a distinction between and or-

der and a report as follows;

127. (1) Where the Director proposes to issue a control order, the Director shall serve notice of

his or her intention, together with written reasons therefore and a copy of the report of the provin-

cial officer or other person designated under this Act upon which the reasons are based, and shall

not issue the control order until fifteen days after the service thereof.

In his submission this is dispositive of the issue.

[487] Mr. Adler also notes that section 157(2)(a) of the Act directs that the provincial officer

shall specify the provision, term or condition that the provincial officer believes is being or has

been contravened and there is absolutely nothing in the Order that addresses this. Section 157(2)

(b) requires that the location of the contravention should be specified and that is not in the Order.

— 111 —

[488] With respect to the determination of whether or not the defendants have collaterally at-

tacked the Order, Mr. Adler submits that there has been no collateral attack. The defendants

submit that the provincial officer had the jurisdiction to make the Order but that it is incompre-

hensible and not capable of being followed and is therefore unenforceable. In addition to this the

Order was made pursuant to s. 157 and not 157.1 and the defendants were entitled to rely what

was on the face of the Order.

[489] Mr. Adler also referred to the penalty section of the Act which is as follows;

Environmental penalties

182.1 (1) Subject to the regulations, the Director may issue an order requiring a regulat-

ed person to pay a penalty if,

(a) the regulated person contravenes,

(i) section 14,

(ii) section 93,

(iii) a provision of the regulations that establishes or has the effect of establishing a nu-

merical limit, including a limit of zero, on the amount, concentration or level of anything

that may be discharged to the natural environment,

(iv) a provision of an order under this Act that establishes or has the effect of establishing

a numerical limit, including a limit of zero, on the amount, concentration or level of any-

thing that may be discharged to the natural environment, or

(v) a provision of an environmental compliance approval, certificate of property use, re-

newable energy approval, licence or permit under this Act that establishes or has the ef-

fect of establishing a numerical limit, including a limit of zero, on the amount, concentra-

tion or level of anything that may be discharged to the natural environment; or

(b) the regulated person contravenes a provision, other than a provision referred to in

clause (a), of,

(i) this Act or the regulations,

(ii) an order under this Act, other than an order under section 99.1, 100.1 or 150 or an or-

der of a court,

(iii) an environmental compliance approval, certificate of property use, renewable energy

approval, licence or permit under this Act,

(iv) a report under section 29, or

(v) an agreement under subsection (9). 2005, c. 12, s. 1 (52); 2009, c. 12, Sched. G,

s. 22 (1, 2); 2010, c. 16, Sched. 7, s. 2 (79, 80).

[490] Mr. Adler asks why should there be an offence contrary to the terms of the report and that

the only report that is valid for this section is a report pursuant to s. 29 which reads as follows:

Report by Minister

29. (1) Where the Minister reports in writing to the clerk of a municipality that the Minister is of

the opinion that it is necessary in the public interest that waste be collected or a waste management

system or any part thereof be established, maintained, operated, improved, extended, enlarged, al-

tered, repaired or replaced, it is not necessary to obtain the assent of the electors to any by-law for

incurring a debt for any such purpose, and the municipality shall forthwith do every possible act

and thing in its power to implement the report of the Minister within the time specified. R.S.O.

1990, c. E.19, s. 29.

Therefore, in his submission that the only report that is valid for the offence section is one by the

Minister.

Mr. Adler then turned to the penalty section in section 187 which reads,

— 112 —

Penalties

187. (1) Every individual convicted of an offence under section 186, other than an offence de-

scribed in subsection (3), is liable,

(a) on a first conviction, for each day or part of a day on which the offence occurs or continues, to

a fine of not more than $50,000; and

(b) on each subsequent conviction,

(i) for each day or part of a day on which the offence occurs or continues, to a fine of not more than

$100,000,

(ii) to imprisonment for a term of not more than one year, or

(iii) to both such fine and imprisonment. 2005, c. 12, s. 1 (57).

Same: corporations

(2) Every corporation convicted of an offence under section 186, other than an offence described in su b-

section (3), is liable,

(a) on a first conviction, for each day or part of a day on which the offence occurs or continues, to a fine of

not more than $250,000; and

(b) on each subsequent conviction, for each day or part of a day on which the offence occurs or continues,

to a fine of not more than $500,000. 2005, c. 12, s. 1 (57).

Application of subss. (4) and (5)

(3) Subsections (4) and (5) apply to the following offences:

1. An offence under subsection 186 (1) of,

i. contravening section 14 or 15,

ii. contravening section 27, 40, 41 or 47.3 in respect of hauled liquid industrial waste or hazardous waste as

designated in the regulations relating to Part V,

iii. contravening section 92 or 184, or

iv. contravening a provision of the regulations that establishes or has the effect of establishing a numerical

limit, including a limit of zero, on the amount, concentration or level of anything that may be discharged to

the natural environment.

2. An offence under subsection 186 (2) of failing to comply with an order under this Act that establishes or

has the effect of establishing a numerical limit, including a limit of zero, on the amount, concentration or

level of anything that may be discharged to the natural environment.

3. An offence under subsection 186 (3) of failing to comply with a term or condition of an environmental

compliance approval, certificate of property use, renewable energy approval, licence or permit under this

Act, or a report under section 29, that establishes or has the effect of establishing a numerical limit, includ-

ing a limit of zero, on the amount, concentration or level of anything that may be discharged to the natural

environment.

4. An offence under subsection 194 (2) that relates to a contravention or failure to comply referred to in

paragraph 1, 2 or 3. 2005, c. 12, s. 1 (57); 2009, c. 12, Sched. G, s. 24; 2010, c. 16, Sched. 7, s. 2 (85).

Certain offences: corporations

(4) Every corporation convicted of an offence described in subsection (3) is liable, for each day or part of a

day on which the offence occurs or continues, to a fine of,

(a) not less than $25,000 and not more than $6,000,000 on a first conviction;

(b) not less than $50,000 and not more than $10,000,000 on a second conviction; and

(c) not less than $100,000 and not more than $10,000,000 on each subsequent conviction. 2005, c. 12,

s. 1 (57).

Certain offences: individuals

(5) Every individual convicted of an offence described in subsection (3) is liable,

(a) for each day or part of a day on which the offence occurs or continues, to a fine of,

(i) not less than $5,000 and not more than $4,000,000 on a first conviction,

(ii) not less than $10,000 and not more than $6,000,000 on a second conviction, and

(iii) not less than $20,000 and not more than $6,000,000 on each subsequent conviction;

(b) to imprisonment for a term of not more than five years less one day; or

(c) to both such fine and imprisonment. 2005, c. 12, s. 1 (57).

[491] Mr. Adler submits that this section is also very specific and the words have specific

meaning. Mr. Adler argues that under part 14 of this Act there is absolutely no provision for the

— 113 —

combination of a report with an Order. Further, Mr. Adler argues that even if it was permissible

to append a report, the report only increases the confusion.

Continuing Offences

[492] Mr. Adler submits that these offences are not continuing offences and that the cases re-

ferred to by the Crown deal primarily with statues of limitations. With respect to the decision in

Rutherford Mr. Adler submits that the Order had a compliance date and therefore was not a con-

tinuing offence and because there was never work done that would have to be continued it is not

a continuing offence. Further, he argues that the request was to simply advise as to whether or

not something can be done and in fact it could not be done and that it doesn’t make sense for the

Crown to insist on the notice being in writing given that they were given the information verbal-

ly.

Financial Considerations

[493] With respect to the defendants ability to pay Mr. Adler submits that the Crown referred to

the filed bank records of various corporate entities and then failed to deal with the issue and

failed to counter the defendant’s insurance problems. In his submission the Crown simply ad-

duced evidence that the corporation was carrying on business which in his view, doesn’t prove

that the defendants were in a position to do something but did not. He argues that the insurance

issues were plaguing the defendants and that they were acting in good faith. Mr. Adler submits

that the foregoing is proof on a balance of probabilities that the defence of impossibility has been

established.

Reliance on Mr. Warren’s advice

[494] Mr. Adler submits that even if I find that the Order was valid and enforceable, the de-

fendants were entitled to rely on the advice of Mr. Warren. He submits that the actions of the de-

fendants must be examined in light of the circumstances at the time. The explosion resulted in

the destruction of the business, the death of an employee and an intense, multi-faceted investiga-

tion was occurring. There was immense media exposure and public pressure.

[495] Mr. Adler submits that the failure to comply with the Order was based on a plain reading

of it. The legal advice confirmed that it was impossible to comply with. The defendants had done

all that they could under extremely difficult circumstances. Mr. Ben-Moshe flew back from Pan-

ama and Mr. Belahov immediately contracted Hazco. Both directors were questioned by the au-

thorities within hours of either the explosion or their return to Canada. The directors also had to

cope with a complete loss of paperwork and the fact that an employee was missing and then was

found dead. Further, Mr. Adler submits that it appeared that Ms. White, the provincial officer,

panicked and failed to take the opportunity to see what could be done in a realistic manner and in

a realistic timeframe.

— 114 —

[496] In terms of statutory interpretation Mr. Adler referred to the decision in R. v. Castonguay,

[2012] O.J. No. 1161 (Ont. C.A.). This was an appeal from the Crown’s successful appeal of an

acquittal on a charge pursuant to s. 14 of the EPA. In this case the company was a subcontractor

on a construction site and one of its blasting operations went wrong and sent rock flying through

the air beyond the controlled area resulting in damage of a house and vehicle on a neighbouring

property.

[497] The Court addressed the principles of statutory interpretation. The corporate defendant

did not report the damage and was finally charged a year and a half later with failing to report the

discharge. The defendant argued that the offence was trivial and as such they were under no ob-

ligation to report. The dissenting opinion expressed by Justice Blair was in favour of the defend-

ant and the majority sided with the Ministry and the intervener, Canadian Environmental Associ-

ation. Justice Blair felt that tort law should govern this type of situation and the majority gave a

broader meaning to the legislation starting it at para. 77. “In conclusion, I see no policy reason

for limiting the coverage of the EPA to fact situations where serious adverse effects to people,

animals and property can be considered only if the environment is also harmed by the impugned

activity. In this case, the discharge of fly-rock into the air during a blasting operation was a suffi-

cient trigger for scrutiny under the EPA.” Mr. Adler makes the point that the dissenting opinion

cannot be seen as a frivolous view and the Crown is arguing that Mr. Warren’s view is just that.

[498] Mr. Warren was looking at the plain meaning of the words in the Order. Mr. Adler re-

ferred to para. 52 of the Castonguay decision, where Justice MacPherson went through the plain

meaning of the words contaminant, discharge and adverse effect as follows;

The fly-rock incident in this case comes within the plain meaning of the words

"contaminant" and "discharge" and the term "adverse effect", as my colleague

recognizes at para. 12 of his draft reasons.

[499] The discharge of the fly-rock in this instance meets all of the prerequisites for liability

under the provision if an "adverse effect" as contemplated by the EPA requires only injury to

property without any accompanying impairment of or harm to the natural environment, as a lit-

eral reading of the definition of "adverse effect" might suggest. Fly-rock is a "solid" resulting

from human activities and, in this case, it caused damage to property and would, on that interpre-

tation, constitute an "adverse effect" (paragraph (b) of the definition) and be a "contaminant."

[Emphasis in original]

[500] Mr. Adler argues that Mr. Warren took the same approach in interpreting the Order and

advised the defendants to comply with the ordinary words. Mr. Adler went on to point out that

the wording in items 3 and 4 included another company that his clients had nothing to do with

and had no way of knowing whether they had been served. With respect to item 5 Mr. Adler

submits that Mr. Hicks had done some work on the roadway but not the residential area, so his

clients could not continue something they had not yet started. Mr. Hick’s had authorization from

Mr. Belahov for the barriers around the site and nothing more.

— 115 —

[501] Mr. Adler also relied on the decision in Merk v. International Association of Bridge,

Structural, Ornamental and Reinforcing Iron Workers, Local 771, [2005] 3 S.C.R. 425, 2005

SCC 70. This case involved “whistle blower” legislation that the union sought to narrow the pro-

tection given to whistle blowers. The union was being prosecuted by one of its own employees.

The majority found that Ms. Merk was within the protection of the Act using a plain meaning

reading of the act. Mr. Adler suggests that this reasoning should apply to the Order, and that the

charges should be dismissed.

Crown Response to Defence Submissions – Breach of Order Charges Information #

0900354

[502] Given the submission of the defendants that it was impossible to comply with the dead-

lines once the Order was received the Crown submits that, as noted previously, the offences were

continuing obligations. Therefore, the fact that the original compliance deadline could not be met

does not render the Order unenforceable.

Defence of Impossibility of Compliance

[503] The Crown submits that the defence of impossibility was considered in R. v. Syncrude

Canada Ltd, [2010] A.J. No. 730 (Alta. Prov. Ct.), which described the defence of impossibility

as an available excuse where it is not physically and morally possible to comply with the law.

The Court observed that the both the offence and the defence of due diligence should be consid-

ered.

8. Impossibility

129 Syncrude maintains that it was impossible to "ensure", as required by s. 155 of the Envi-

ronmental Protection Act, that waterfowl would not be contaminated in its tailings pond and the

evidence supports that assertion. Impossibility appears to be available as an excuse where it is not

physically or morally possible to comply with the law. R. v. Royka, [1980] O.J. No. 596 (C.A.) at

paras. 29-30; R. v. 605884 Saskatchewan Ltd., 2004 SKPC 16 at paras. 60-62; R. v. Belman,

[2001] O.J. No. 2288 (Ont. C.J.) at paras. 40-42; Swaigen at pp. 194-200; Libman at pp. 8-13 to 8-

15.

130 In determining whether it was impossible to comply with the law, both the offence and the

defence of due diligence should be considered. This view is supported by the reference in

Swaigen, at p. 194 of his text, to impossibility and necessity as opposite sides of the same coin.

Necessity deals with the imperative to break the law while impossibility deals with the inability to

comply with the law. The elements of the defence of necessity described by Dickson, J. in R. v.

Perka, [1984] 2 S.C.R. 232 were confirmed in R. v. Latimer, [2001] 1 S.C.R. 3 at para. 28, where

the Court held:



Perka outlined three elements that must be present for the defence of necessity. First,

there is the requirement of imminent peril or danger. Second, the accused must have had

no reasonable legal alternative to the course of action he or she undertook. Third, there

must be proportionality between the harm inflicted and the harmavoided.

While the first and third elements may be inappropriate to the defence of impossibility,

the second fits comfortably. In Latimer the Supreme Court expanded on that element at

para. 30:

131

— 116 —



... If there was a reasonable legal alternative to breaking the law, there is no necessity. It

may be noted that the requirement involves a realistic appreciation of the alternatives

open to a person; the accused need not be placed in the last resort imaginable, but he must

have no reasonable legal alternative. If an alternative to breaking the law exists, the de-

fence of necessity on this aspect fails.

132 As I have already indicated, Syncrude could not "ensure" that waterfowl did not land on the

Aurora Settling Basin on April 28, 2008 but it had a reasonable legal alternative. I am convinced

beyond reasonable doubt that Syncrude could have acted lawfully by using due diligence to deter

birds from the Basin, whether or not it was successful in its attempts at deterrence, and it did not

do so

The Court rejected the corporation’s defence of impossibility.

[504] In R. v. Belman, [2001] O.J. No. 2288 (O.C.J.) at para. 55 the Court was considering the

defence in a situation where a motorcyclist claimed that it was impossible to attach a parking re-

ceipt to the windshield of his motorcycle. The court held that the defence was not available as the

defendant had not established that all reasonable steps were taken to attempt to place the receipt

on the windshield.

[505] In R. v. Canchem, [1984] 4 C.E.L.R. (N.S.) 237 (N.S.Prov. Ct.)., the corporation was ac-

quitted of failing to remove all wastes from a site within thirty days contrary to an environmental

order on the basis that it was impossible to comply with the order within the time allotted. The

company had taken some steps to comply when the government stepped in and hired a company

to clean the site that took much longer than 30 days. The judge found that was evidence that it

was impossible to finish the clean-up in 30 days. The Crown submits that this case is authority

for the proposition that in considering the ability to comply with a deadline in an environmental

order the issue is one of due diligence.

Reliance on Mistaken Legal Advice

[506] As the defendants took the position that they were entitled to rely on Mr. Warren’s advice

the Crown responded to that submission. The Crown submits that Mr. Warren’s interpretation of

the Order is unsupported and contrary to the facts underlying the Order, overly technical and

contrary to the ordinary and common sense interpretation of the terms when read in light of the

Order and its purpose. In the Crown’s submission if I reject the interpretation suggested by the

defendants, then any reliance on that interpretation amounts to an error in law.

[507] The Crown submits that ignorance of the law is not a defence and this principle is codi-

fied in s. 81 of the Provincial Offences Act which reads as follows;

Ignorance of the law by a person who commits an offence is not an excuse for commit-

ting the offence.

— 117 —

[508] The Crown further submits that the leading case in this area is R. v. Mollis,[1980] S.C.J.

No. 75, (S.C.C.) which states in strict liability cases due diligence does not apply to steps taken

to ascertain or interpret the law in the last para.,

But I hasten to add that the defence of due diligence that was referred to in Sault Ste. Ma-

rie is that of due diligence in relation to the fulfilment of a duty imposed by law and not

in relation to the ascertainment of the existence of a prohibition or its interpretation.

[509] The Crown noted that Mollis has been followed in R. v. Kotch, [1990] ABCA 348, R. v.

Stucky, [2009] ONCA 151, leave to appeal to the Supreme Court discontinued [2009] S.C.C.A.

No. 186 and R. v. Eizenga, [2011] ONCA 113. All of these cases stand for the proposition that

“it is well established that reliance on legal advice is a mistake of law which affords no defence

to the commission of any offence.”

[510] The Crown also submits that the defendants reliance on R. v. Campbell, [1999] 1 S.C.R.

565 in support of the position that reliance on mistaken legal advice is a defence is an error as in

that case the Supreme Court of Canada found that the RCMP officers who had participated in a

large reverse sting operation had violated the Narcotics Control Act by selling the hashish de-

spite the fact that they had apparently acted on mistaken legal advice.

[511] Finally, the legal advice at issue related to only items 2 and 5 of the Order. This advice

was given in response to erroneous factual information provided to Mr. Warren by the defend-

ants. Apparently the defendants failed to advise him that they had, in fact, commenced clean-up

work.

[512] The Crown submits that there is an absence of evidence that the defendants relied on this

advice in any event.

Due Diligence: Ability to Comply and Economic Considerations

[513] The Crown submitted that lack of financial means is only one factor in the due diligence

analysis. In R. v. Commander Business Furniture, 9 C.E.L.R. (N.S.) 185 (O.C.J.) involved

charges of discharging odour into the air against a company that spray painted furniture. The

court considered the Ontario Court of Appeal decision in R. v. C.I.P. Inc. (1983), 13 C.E.L.R.7

Aff’d (1983), 12 C.E.L.R. 121 as well as a quote from John Swaigen’s text Regulatory Offences

in Canada, Liability and Defences and concluded that financial means are a factor to consider

with other factors regarding a due diligence defence.

[514] The Crown submitted that in Canchem the company was found guilty as it had failed to

comply with a requirement to build a fence within a certain timeframe and economic considera-

tions did not relieve the company of the obligation.

[515] The Crown argues that the defendants have failed to provide any evidence that they were

financially unable to comply with the Order. There was a suggestion that there was a problem

with respect to the scope of the insurance policy but no evidentiary foundation was called to es-

— 118 —

tablish this. Although Mr. Warren testified that the defendants’ ability to comply depended on a

number of variables he acknowledged that he had no personal knowledge of whether the infor-

mation he was provided by his clients was true. Any hearsay statements regarding the status of

the insurance policy cannot be relied upon for the truth of their contents. Further, the Crown ar-

gues that there is no evidence to explain how the insurance coverage is related to the specific re-

quirements of the Order and the ability of the defendants to comply with it.

[516] In the Crown’s submission there was no admissible evidence adduced by the defendants

regarding a lack of financial ability to comply with the Order. In fact there is evidence in Mr. Be-

lahov’s August 12, 2008 statement to the Toronto Police that the business was doing well and

did not owe money to creditors. In Mr. Ben-Moshe’s statement to the Toronto Police on August

13, 2008 he advised that sales were in the range of 1.2 to 1.6 million dollars per month. Mr.

Warren testified that the initial retainer for his firm was $10,000.00 and the bill had increased to

$30,000.00 by August 31, 2008. In addition to this Mr. McIntyre testified that the defendants

continued to carry on business into September of 2008.

[517] The Crown also points to the defendants’ financial records which show that a number of

large cash transactions took place shortly after the explosion. Between August 12, 2008 and Au-

gust 14, 2008 a total of $275,000.00 was paid by Sunrise Propane to counsel Dan Ronen. Be-

tween August 10, 2008 and October 31, 2008 $458,400.00 was transferred from a Sunrise Pro-

pane account to a private account and at least $225,000.00 was transferred to the Sunrise Pro-

pane General Account between August 10, 2008 and October 31, 2008.

[518] The Crown also submitted that both Mr. Keys and Mr. McCullough testified that all of

the defendants’ former customers currently have their propane delivered by PrimeMax Energy

Inc. This company is a well-known distributor of propane. The former Sunrise Propane sites are

now being managed by a company known as GM Petroleum. The principal of that company is

Mr. Mizlitsky, the former Sunrise Propane dispatcher. In the days and months following the ex-

plosion Sunrise Propane paid a total of $485,057.00 to PrimeMax Energy Inc. Mr. McIntyre tes-

tified that he observed a Carling Propane truck filling a bulk propane vertical tank of one of the

other Sunrise Propane sites. In the days and months following the explosion Sunrise Propane

paid a total of $250,000.00 to Carling Propane.

[519] The Crown also referred to a number of other cheques issued to Discount Propane

($8,056.00 for lease of two tankers), CIBC Visa ($3,865.00) and to Valeri’s Company Inc.

($3,658.00 for “work done between July 16 and 31”. The Crown submits that the evidence is

clear that the defendants had hundreds of thousands of dollars available to them after the explo-

sion and that the directors were able to choose how to allocate those resources. In light of this the

defendants have failed to demonstrate that reasonable steps were taken to comply with the Order.

The defendants allowed their business and private economic interests to take priority over the

public interest. The Crown submits that the actus reus has been proven beyond a reasonable

doubt and that due diligence has not been established.

— 119 —

Analysis

The Ministry of Environment s. 14 Environmental Protection Act Charge of Discharging a

Contaminant into the Environment - Information # 10400978

The Actus Reus and Foreseeability.

[520] As I have indicated previously in this judgment it is well settled that the Crown is re-

quired to establish that the actus reus of a regulatory, strict liability, offence and that the burden

then shifts to the defendants to establish that they have been duly diligent. The Crown argued

that there were a number of ways that the defendants failed to prevent the discharge and they are

set out under different headings in this judgment. All of these headings refer to the s. 14 charge.

[521] In this case I am in agreement with the Crown position that foreseeability is part of the

due diligence analysis and not part of the actus reus determination. The Ontario Court of Appeal

dealt directly with this issue in the Timminco Ltd. decision referred to by the Crown. The main

issue in the appeal was whether knowledge of an alleged workplace hazard was part of the actus

reus of the regulatory offence set out in out in s. 25(1)(c) of the Occupational Health and Safety

Act, R.S.O. 1990 c. 0.1 and s. 185(1) of Regulation 854 R.R.O. 1990. The trial judge had al-

lowed the Respondent’s motion for a directed verdict based on his interpretation of the Court of

Appeal’s judgment in R. v. Grant Paving and Materials Ltd, [1996] O.J. No. 3703, delivered

October 23, 1996 . It was the view of the trial judge that there was no evidence to suggest that

Timminco knew that the exposed moving index beam presented a hazard to the deceased worker.

[522] The Summary Conviction Appeal Judge found that the defendant had sufficient

knowledge of the exposed the exposed moving part to establish the actus reus of the offence and

determined that it was unnecessary to consider the issue raised at trial in Grant Paving - whether

prior knowledge of a hazard is an essential element of the offence charged. A new trial was or-

dered. Timminco appealed that decision. At para. 26 of that decision the court discussed the poli-

cy reason for imposing the burden of proving a due diligence upon the defendant as follows;

26

To impose an obligation on the Crown to prove a mental element on a strict liability offence

would impede the adequate enforcement of public welfare legislation. See R. v. Sault Ste. Marie,

supra, and R. v. The Wholesale Travel Group Inc., supra. Furthermore, this would convert a strict

liability regulatory offence into a mens rea offence. In my opinion, clear language is required to

create a mens rea offence in a public welfare statute. Yet words like "wilfully", "with intent",

"knowingly" and "intentionally" are conspicuously absent from s. 25(1)(c) of the Occupational

Health and Safety Act. Section 25(1)(c) simply requires that an employer "shall ensure that ... the

measures and procedures prescribed are carried out in the workplace." In fact, use of the word "en-

sure" suggests that the Legislature intended to impose a strict duty on the employer to make cer-

tain that the prescribed safety standards were complied with at all material times. Emphasis added.

— 120 —

[523] The Court also referred to the Rio Algom decision that determined that foreseeability

should properly be part of the due diligence defence. The court went on to discuss why there was

some confusion that had arisen regarding whether or not foreseeability had to be established by

the Crown or if it was part of the defence of due diligence in paras. 32 – 36,

32

In Grant Paving, the employer was charged with failing to ensure that measures and proce-

dures prescribed by certain Occupational Health and Safety Act regulations were carried out con-

trary to s. 25(1)(c) of the Act. The applicable regulations required a worker to wear eye-protection

and protective clothing. The employer was required to provide its employee with an eye-wash

fountain if the employee was exposed to injury to the skin or eyes from contact with a hazardous

substance. The charges were dismissed at the conclusion of the Crown's case on a defence motion

for a directed verdict.

33

In dealing with the motion, the Trial Judge in Grant Paving made a number of discrete find-

ings. Two of those findings require brief comment. First, he concluded that "there was nothing be-

fore the court to show that [a worker] was exposed to the hazard". Second, he held that "the ac-

cused has to knowingly be responsible for circumstances to be held liable by law". The second of

these findings has created a problem in the jurisprudence. See R. v. Mills, a judgment of the On-

tario Court, Provincial Division, delivered December 6, 1996 and R. v. Peake, [1999] O.J. No.

696. The Trial Judges in both Mills and Peake, respectively, relied on Grant Paving, in granting a

motion for a directed verdict. They interpreted Grant Paving as requiring that the Crown must

prove that the employer had knowledge of the hazard. Other Judges have not interpreted Grant

Paving to stand for this proposition. See for example, R. v. Jetters Roofing and Wall Cladding Inc.

v. Blouse, [1999] O.J. No. 5244, per Stafford J.P. at para. 20.

34

In Grant Paving, the Appeal Judge reviewed the issue of foreseeability of the hazard and

worker error. He found that the Trial Court erred in considering "factors that properly should have

gone to the defence of due diligence". He therefore concluded that the Trial Judge erred in gran t-

ing the employer's motion for a directed verdict.

35

In a brief endorsement on the employer's appeal, this Court focused on the Trial Judge's find-

ing that there was no evidence that the employee was exposed to a hazard. The Court concluded

that this finding of fact should not have been disturbed at the first level of appeal. Thus, the em-

ployer's appeal was allowed. The Court's endorsement did not refer to any of the other reasons of

the Trial Judge. In my view, given the manifestly limited scope of the endorsement, Grant Paving

is not authority for the proposition that the Crown must prove knowledge of a hazard in prosecu-

tions under the Occupational Health and Safety Act and its Regulations.

[524] The Court found that the Appeal judge was correct and dismissed the appeal. This deci-

sion is authority for the principle that there could, in certain situations, be strict liability offences

that would require the Crown to prove mens rea, but the language in the charging section must be

clear. The court provided the examples of words which would import this requirement such as

"wilfully", "with intent", "knowingly" and "intentionally". These words are also absent in s. 14

of the Environmental Protection Act and therefore, foreseeability does not have to be proven by

the crown and must be addressed by the defendants.

[525] In my view the actus reus has been proven by the agreed statement of facts that was filed

with the court. The defendants clearly committed the actus reus described in the Information be-

fore the court that ‘on or about August 10, 2008 at or about 54 Murray Rd, City of Toronto, did

commit the offence of discharging or causing or permitting the discharge of a contaminant,

namely sound, vibration, heat, gas vapour or solids, into the natural environment that caused or

was likely to have caused an adverse effect, contrary to Sec. 14…”

— 121 —

[526] I will reproduce the relevant portion of the agreed statement of facts here for ease of ref-

erence,

Sunrise Propane Energy Group Inc. is and was on August the 10^th, 2008, a cor-

poration duly incorporated under the laws of Ontario. On or about August the

10^th, 2008, Sunrise Propane operated a propane business that supplied propane

and industrial gases at a facility located at 54 Murray Road in the city of Toron-

to. 1367229 Ontario Inc. is and was on August the 10^th, 2008, a corporation du-

ly incorporated under the laws of Ontario. 1367229 Ontario Inc. carries on

business as Sunrise Propane, and was on August the 10^th, 2008, the holder of an

authorization pursuant to Ontario Regulation 211/01 made under the Technical

Standards and Safety Act, S.O. 2,000, CHAPTER 16, to operate a propane refill

cylinder and motor fill at the facility. From September 2004 up to and including

August 2008, 1367229 Ontario Inc. leased the property on which the facility is

located from Teskey Construction Co. Ltd.

On August the 9^th, 2008, Sunrise Propane dispatched Victor Vlad an independ-

ent contractor who drove propane tankers for Sunrise Propane to drive cargo lin-

er unit 861 to the BP Energy Canada Ltd. liquid propane terminal in Sarnia to

purchase bulk propane. Cargo liner unit 861 was a tanker trailer with an 18,000

USWG capacity, or 68,000 litres. Sunrise Propane leased unit 861 from

1452049 Ontario Inc., a company owned by Gary Mizlitsky which operated as

Discount Propane out of the same 54 Murray Road facility. Mr. Mizlitsky also

worked for Sunrise Propane as its fleet manager and dispatcher in which capaci-

ty he would direct Sunrise Propane drivers to drive to Sarnia to pick up bulk

propane and transport it back to the facility from which it would be distributed

to Sunrise Propane customers. He would also take orders fromSunrise Propane

customers and direct Sunrise Propane drivers to make propane deliveries to

those customers.

On August 9^th, 2008, Mr. Vlad filled unit 861 with approximately 15,600

USWG, or 59,000 litres, of liquid propane from the terminal in Sarnia, and then

drove unit 861 back to the facility where he parked it at approximately 5:00 p.m.

Unit 861 was typically used to fill smaller propane tanker trucks for delivery in

and around the Greater Toronto Area, to customers whose sites would be inac-

cessible using a larger tanker trailer like unit 861. One of these smaller cargo

liners was unit 1 which had a tanker capacity of 14,900 USWG, or 56,400 litres,

for liquid propane. When unit 861 returned to the facility on August the 9^th,

2008, Mr. Vlad transferred approximately 4500 to 5300 USWG, or between

17,000 to 20,000 litres, of liquid propane from unit 861 into unit 1.

At approximately 8:45 p.m., Felipe De Leon, another independent contractor

who drove propane tankers for Sunrise Propane, arrived for work. Gary

Mizlitsky dispatched him to deliver propane using unit 1, to four Sunrise Pro-

pane customers, before returning to the facility. Unit 1 was approximately 50

per cent full when Mr. De Leon returned to the facility at around 3:00 a.m. on

Sunday, August the 10^th, 2008. Mr. De Leon did a truck-to-truck transfer of liq-

uid propane from unit 861 to unit 1. As a result of the transfer, unit 1 was filled

to between 85 per cent and 90 per cent of its capacity.

— 122 —

At about 3:47 a.m. on August the 10^th, 2008, there was a large propane vapour

cloud explosion at the facility, hereafter referred to as explosion #1. Explosion

#1 was followed by numerous smaller explosions as the heat from explosion #1

ignited tanks of propane belonging to Sunrise Propane and other companies that

were stored at the facility. Approximately six minutes after explosion #1, there

was a second large propane explosion at the facility, explosion #2. Explosion #2

was a BLEVE, an acronym for boiling liquid expanding vapour explosion, of

unit 1, the tanker that Mr. De Leon had been filling. After explosion #2, further

smaller explosions of smaller tanks of propane followed until the daylight hours.

The propane that exploded in explosion #1, explosion #2, and in the other small-

er explosions that followed both explosion #1 and explosion #2, was under the

management and control of Sunrise Propane.

The propane explosions at the facility on the morning of August the 10^th, 2008,

resulted in a discharge of contaminants from the facility into the natural envi-

ronment. The contaminants that were discharged included heat, vibration, sound,

gas vapour, smoke, and solids such as asbestos, dust, metal fragments, and other

debris. The discharged contaminants caused a variety of adverse effects, includ-

ing personal injuries, including cuts, bruises and burns to neighbours in nearby

residences, damage to neighbouring residences, including shattered windows,

blown-in garage doors and structural damage to walls, ceilings and roofs. Some

homes were rendered uninhabitable for over a year. Many nearby residents

were forced to immediately flee from their homes due to the on-going explo-

sions and/or the threat that their homes might collapse due to the structural dam-

age caused by the explosions. Approximately 12,000 residents within a 1.6 kil-

ometre radius of explosions were evacuated in the middle of the night due to the

threat of further explosions while the fire persisted at the facility. Residents who

were displaced by the blasts suffered lost wages, and were forced to pay out-of-

pocket expenses for temporary shelter and clothing. Two local elementary

schools suffered structural damage, and while all repairs and clean-ups were

completed before the opening of the schools in September, significant disruption

occurred as teachers and custodians were unable to access the premises during

the latter half of August when they would normally be completing preparatory

work. Local businesses suffered structural damage to buildings, closures to the

public which caused losses of revenue and losses of working shifts. One bus i-

ness, a car dealership, was completely destroyed. Buildings and headstones in

the neighbouring cemetery were damaged. Asbestos, including friable asbestos

which is the most dangerous form of asbestos and other debris, including large

metal fragments from the exploded tanks, was dispersed into the neighbourhood

as far away as one kilometre from the facility. However, air quality testing

commenced on August the 12^th, 2008, and continued throughout the clean-up,

subsequently confirmed that airborne asbestos levels were not at levels that

would cause human health effects. A local child-care centre was temporarily

closed due to the potential for asbestos contamination. Mr. Parminder Singh

Saini, a part-time employee of Sunrise Propane who was working the night shift

at the facility at the time of the explosions, was killed in the explosions. [empha-

sis added]

[527] The EPA definitions of terms can be found in section 1. The word discharge “when used

as a verb, includes add, deposit, leak or emit and, when used as a noun, includes addition, depos-

— 123 —

it, emission or leak”. Contaminant is defined as “any solid, liquid, gas, odour, heat, sound, vibra-

tion, radiation or combination of any of them resulting directly or indirectly from human activi-

ties that causes or may cause an adverse effect”. Adverse effect is defined as well and means one

or more of,

(a) impairment of the quality of the natural environment for any use that can be made of it,

(b) injury or damage to property or to plant or animal life,

(c) harm or material discomfort to any person,

(d) an adverse effect on the health of any person,

(e) impairment of the safety of any person,

(f) rendering any property or plant or animal life unfit for human use,

(g) loss of enjoyment of normal use of property, and

(h) interference with the normal conduct of business;

[528] Therefore, the Crown must prove that the defendants discharged or caused or permitted

the discharge of a contaminant into the environment that caused an adverse effect. The evidence

contained in 1367229’s insurance policy clearly shows that this numbered company and Sunrise

Property Energy Group Inc. were in control of everything that happened at the site. See, Sault

Ste. Marie, Nitrochem, and Placer Developments Ltd. In my view the Crown has proven the ac-

tus reus beyond a reasonable doubt through the agreed statement of fact relating to this charge.

Due Diligence

[529] The burden now shifts to the defendants to prove, on a balance of probabilities, that they

were duly diligent. With respect to this count the defendants must show that they took all reason-

able steps to prevent discharging contaminants into the environment.

Foreseeability

[530] I have discussed the issue of foreseeability earlier in this judgment; therefore, I don’t

propose to go over it in great detail here. Foreseeability is one of the factors to consider when

determining whether or not the defence has established the due diligence defence. Mr. Adler has

argued that the defendants could not have possibly foreseen this particular event happening. That

may be true; however, the issue, as the Ontario Court of Appeal has determined in Rio Algom, is

whether or not the defendants could have foreseen that a propane leak could have resulted in an

explosion.

[531] A similar case to the case before the court is found in R. v. Power Tank Lines Ltd.,

(1975), O.J. No. 2662 (O.C.J.) there was an oil spill from a truck and at para. 20 the court said,

20 All oil spills are "accidental", in the sense that no one would voluntarily cause them. Howev-

er, when they occur responsibility must accrue to someone and someone who is in a position to

clean up the spill quickly and effectively. Oil which is carried in trucks on the highway is usually

in large quantities and at times it must be in remote parts of the Province where few local facilities

exist to deal with such situations. It does not seemunreasonable to suggest that the environmental

purpose of this Act could be effectively accomplished by the establishment of certain stations and

vans to deal with highway spills. Some of these could be established by the oil companies. Though

— 124 —

a conviction might well follow an "accidental" spill the alacrity and efficiency in dealing with

such an emergency would obviously be available to mitigate any penalty imposed.

And at para. 23 the court went on to say,

23 I am registering a conviction under both Acts because I believe that a person or company

which causes oil to be carried upon the highway must accept a certain foreseeable risk of accident

no matter by whom caused. Additionally, when a spill occurs he must be prompt to deal with the

same. In the instant case the company was responsible for the oil in passage and also it did not

take the appropriate steps to clean up the spill and there will be a conviction on both counts one

and three.

This case illustrates how the issue of foreseeability should be framed.

[532] I agree with the Crown submission that the risk of a propane leak resulting in an explo-

sion is foreseeable and that is why the transportation and distribution of propane is regulated.

The focus of the legislation as well as training for those who handle propane is all focussed on

preventing leaks that can cause explosions. The training guide introduced into evidence states

“treat every release of propane as having the potential for fire or explosion”.

The Truck-to-Truck Transfers

[533] In this case I have heard from a number of witnesses regarding the Director’s Order of

October, 31, 2006. Ms. Sandra Cooke gave evidence regarding the background as to how the Or-

der came into effect. There were safety concerns that were brought to her attention and eventual-

ly she drafted an Order that prohibited truck-to-truck transfers unless they were being conducted

at a bulk plant. She testified that there was an explosion in New Jersey when a truck-to-truck

transfer was carried out. The other concern was that a business could increase its storage capacity

for propane without the TSSA knowing about it. This would be concerning, particularly if the

business was close to a heavily populated area.

[534] I found Ms. Cooke to be a very credible and careful witness. She responded to all ques-

tions asked and was very knowledgeable about processes and procedures at the TSSA. Her evi-

dence was that the Director’s Order was signed and posted on the website. Although she could

not produce a signed copy of the Order I believe her evidence that it was signed and was posted

to the website and I find this as a fact.

[535] I have some concerns about Mr. Don Heyworth’s evidence regarding the Director’s Or-

der. Although he testified that he had never given permission for the defendants to carry on with

truck-to-truck transfers in his examination-in-chief, in cross-examination he admitted asking Mr.

Ben-Moshe if truck-to-truck transfers were going on and Mr. Ben-Moshe replied in the affirma-

tive, yet he did not issue a report ordering them to stop. He later said that he had asked Mr. Ben-

Moshe about this before the Director’s Order had come out. I find that I don’t accept his evi-

dence that he denied giving permission to the defendants to continue with the truck-to-truck

transfers. I have concerns with the reliability of this evidence as well given his lack of memory

of the meeting. He apparently recalled the meeting only days before this trial was set to start.

— 125 —

[536] I do, however, accept his evidence with respect to his inspections at the 54 Murray Road

site. There were reports that were made on the same date of the inspections which allow me to

have confidence in the truth of this evidence. It is trite law that I can accept all, some or none of

a witness’ evidence. See D.R. et al. v. The Queen (1996), 107 C.C.C. (3d) 289 (S.C.C.) per

L'Heureux-Dubé J. (in dissent in the result) at 318; Regina v. Hunter, [2000] O.J. No. 4089

(C.A.) at para. 5 per curiam; Regina v. Abdallah, [1997] O.J. No. 2055 (C.A.) at para. 4, 5 per

Carthy and Goudge JJ.A.

[537] Mr. Keys gave evidence that there was permission given by Mr. Heyworth for the de-

fendants to carry on with their business. Although his memory was not very clear as to what

happened during the meeting and he didn’t recall anyone mentioning truck-to-truck transfers he

did write the letter erroneously dated July 9, 2007 which was likely sent October 15^thof 2007,

which was copied to Mr. Heyworth and confirmed that Sunrise would be carrying on business. I

found Mr. Key’s evidence to be credible. He was responsive to questions, admitted some errors

he had made and was not shaken in cross-examination. He had notes made close to the time of

the meeting etc. that assisted him with his evidence. I appreciate that one might expect that this

witness to have a bias given that he did a large amount of work for the defendants’, however,

that is not the impression that I have after listening to his evidence. In my view, his evidence

provides confirmation that there had been some sort of permission given to the defendants to car-

ry on business as they had been prior to the Director’s Order.

[538] Mr. McCullough also testified about the meeting in November\December of 2006. He

refreshed his memory from a spiral notebook that he had kept notes in at the time of the meeting.

His recollection was that a larger tank would be required given the Director’s Order. He specifi-

cally recalled Mr. Heyworth saying that he didn’t want to put anybody out of business and that

he was there to help them comply with the changes. I also found Mr. McCullough’s evidence on

this point convincing. He had notes of the meeting and testified in a manner that was straight

forward. Again, as with the previous witness discussed, I appreciate that Mr. McCullough had a

long and profitable business relationship with the defendants; however, I have no reason to dis-

believe his evidence.

Officially Induced Error

[539] Therefore, I find as a fact that Mr. Heyworth either expressly told the defendants that

they could continue to conduct business by doing truck-to-truck transfers or that he implied that

they could continue to conduct business in this manner which led them to be mistaken as to what

the situation was. This leads me to a consideration as to whether or not the defence of officially

induced error would be available to the defendants. The Supreme Court of Canada addressed the

nature of this defence and its availability with respect to regulatory offences and R. v. Jorgensen,

[1995] 4 SCR 55 at paras. 28 – 30,

— 126 —

28 The first step in raising an officially induced error of law argument will be to determine that

the error was in fact one of law or of mixed law and fact. Of course, if the error is purely one of

fact, this argument will be unnecessary. Unlike Professor Barton, I do not agree that officially in-

duced error should be used to eradicate the distinction between mistakes of fact and mistakes of

law. This distinction is important for all the reasons that I believe the principle that ignorance of

the law does not excuse must stand firm. Distinguishing between mistakes of fact and those of law

remains conceptually important. Mistakes of law will only be exculpatory in narrowly defined cir-

cumstances.

29 Once it is determined that the error was one of law, the next step is to demonstrate that the

accused considered the legal consequences of her actions. By requiring that an accused must have

considered whether her conduct might be illegal and sought advice as a consequence, we ensure

that the incentive for a responsible and informed citizenry is not undermined. It is insufficient for

an accused who wishes to benefit from this excuse to simply have assumed that her conduct was

permissible.

30 The next step in arguing for this excuse will be to demonstrate that the advice obtained came

from an appropriate official. One primary objective of this doctrine is to prevent the obvious injus-

tice which O Hearn Co. Ct. J. noted -- the state approving conduct with one hand and seeking to

bring criminal sanction for that conduct with the other. In general, therefore, government officials

who are involved in the administration of the law in question will be considered appropriate offi-

cials. I do not wish to establish a closed list of officials whose erroneous advice may be considered

exculpatory. The measure proposed by O Hearn Co. Ct. J. is persuasive. That is, the official must

be one whom a reasonable individual in the position of the accused would normally consider re-

sponsible for advice about the particular law in question. Therefore, the Motor Vehicle Registrar

will be an appropriate person to give advice about driving offences, both federal and provincial.

The determination of whether the official was an appropriate one to seek advice from is to be de-

termined in the circumstances of each case.

[540] In Levis (City) v. Tetreault, [2006] 1 SCR 420 at paras. 22 - 24

22 This Court has firmly and consistently applied the principle that ignorance of the l aw is no

defence. It has given effect to this principle not only in the context of the criminal law itself, but

also in cases involving regulatory offences (Molis v. The Queen, [1980] 2 S.C.R. 356; Pontes).

However, the inflexibility of this rule is cause for concern where the error in law of the accused

arises out of an error of an authorized representative of the state and the state then demands,

through other officials, that the criminal law be applied strictly to punish the conduct of the ac-

cused. In such a case, regardless of whether it involves strict liability or absolute liability offences,

the fundamental fairness of the criminal process would appear to be compromised. Although the

Court has not ruled on this point, Lamer C.J. responded to these concerns, in concurring reasons in

Jorgensen (R. v. Jorgensen, [1995] 4 S.C.R. 55), by proposing to recognize the defence of official-

ly induced error and attempting to define the conditions under which the defence would be al-

lowed.

23 In that case, which involved a charge of selling obscene material, Lamer C.J. carefully re-

viewed the development of this defence by the courts. He pointed out that the defence had sur-

faced gradually in criminal law and had been applied by trial and appeal courts to both crimes and

regulatory offences (Jorgensen, at paras. 12-24). He noted that the judges of this Court, including

Ritchie J. in R. v. MacDougall, [1982] 2 S.C.R. 605, at p. 613, had at times appeared to

acknowledge the appropriateness of such a defence (Jorgensen, at para. 17). Later, Gonthier J.,

too, discussed the framework and nature of the defence of officially induced error in his dissenting

reasons in Pontes, at p. 88 (Jorgensen, at para. 23).

24 In Lamer C.J.'s view, this defence constituted a limited but necessary exception to the rule

that ignorance of the law cannot excuse the commission of a criminal offence:



Officially induced error of law exists as an exception to the rule that ignorance of the

law does not excuse. As several of the cases where this rule has been discussed note,the

— 127 —

complexity of contemporary regulation makes the assumption that a responsible citizen

will have a comprehensive knowledge of the law unreasonable. This complexity, howev-

er, does not justify rejecting a rule which encourages a responsible citizenry, encourages

government to publicize enactments, and is an essential foundation to the rule of law. Ra-

ther, extensive regulation is one motive for creating a limited exception to the rule that

ignorantia jurisneminem excusat.

(Jorgensen, at para. 25)

[541] In this case the defence would be available in my view given that the defendants took

steps to determine whether or not they could carry on business. They were assured that they

could continue operating despite the Director’s Order. However, in my view, this defence was

only available to them up until the at least for the period up to the date where the code adoption

document was issued in June of 2007 which prohibited the truck-to-truck transfers.

[542] At this point the defendants were put on notice that the situation had changed and they

would either have to stop the truck-to-truck transfers and continue their business in another man-

ner by contracting out the distribution of propane or at least make an attempt to determine if an-

other exemption would be available to them given that they were taking steps to install the

30,000 USWG tank. There was no evidence that further permission was given to the defendants

to continue with these transfers and they have not established that they were duly diligent, as

they have not established officially induced error from June of 2007 to the date of the explosion.

Failure to install the 30,000 USWG propane tank

[543] In my view the defendants did pursue the installation of the USWG tank in a diligent

manner. Although it was possible that it could have been installed prior to the offence date there

were a number of complicating issues that arose.

[544] The defendants took steps within days of the Director’s Order being issued. There was a

meeting 9 days later between Mr. Ben-Moshe and the TSSA Inspector Mr. Heyworth to discuss

the Order and what it meant. Shortly after that meeting, either in late November or December of

2006 during which there was a discussion regarding what type of tank would be best suited for

the 54 Murray site. Mr. Keys went on to take steps within days to see if the city of Toronto

would allow the installation of a 30,000 USWG tank and he continued to pursue this matter into

January of the next year.

[545] Mr. McCullough was not sure when he ordered the new tank but he sent an invoice to the

defendants on June 11, 2007 for a deposit on the new tank. The tank had to be custom built and

by the time it had arrived on September 25, 2007 and Mr. Keys proceeded with the application

package for the tank was sent on October 15, 2007 and was received on October 24 2007 by the

TSSA. On November 8, 2007 Mr. Kulik of the TSSA sent a letter to Mr. Ben-Moshe advising

that he had received the application and reminding him to schedule an inspection 10 days before

the tank was to be commissioned.

— 128 —

[546] Mr. McCullough testified that it would be exceedingly difficult to install the tank in the

winter. A number of extra steps would be required to ensure that parts didn’t freeze or become

damaged once exposed to water. The spring was also very wet and Mr. McCullough felt it would

be safer to do the work in good weather. Mr. McCullough conceded that some of the delay was

because he was involved in other projects. I found his explanation as to why he had to wait until

the weather was better to start on the installation reasonable. I also note that the installation of

the two 2,000 USWG took approximately one year for him to install. This was a much larger

project and when I take all of these factors into account the delay was not unreasonable.

Failure to Provide Oversight of Truck Drivers

[547] In my opinion the defendants failed to prove that they were duly diligent in the ongoing

oversight of their truck drivers involved in the transport and distribution of propane. Although

there was ample evidence of training provided to Mr. De Leon prior to starting the job there was

a complete lack of evidence regarding ongoing training regarding safety and compliance with

new regulations. Although there was no mention of a health and safety committee, no details

were entered into evidence. There was no evidence of a system of updating the truck drivers of

new safety procedures or changes in the regulations, no evidence of spot checks and no evidence

that the truck drivers were aware of the safety concerns regarding truck-to-truck transfers. Mr.

De Leon did not know that these transfers were presumptively illegal.

[548] In an inherently dangerous industry the defendants were required to take steps to ensure

that their truck drivers were knowledgeable about the risks of handling propane and how to avoid

them.

Failure of Preventative Maintenance of Equipment

[549] Although there was some evidence of a preventative maintenance system, in my view, it

was woefully inadequate. The proposed “system” was Mr. McCullough’s checklist system that

he employed for the 56 sites operated by the defendants.

[550] I agree with the Crown that the courts have consistently found that corporations who are

engaging in business involving dangerous or hazardous substances must ensure that there is a

system in place to prevent the occurrence. This was the situation, in Canadian Tire, Island Indus-

trial Chrome Co. and Gulf of Georgia Towing for example.

[551] The evidence before the court regarding to Mr. McCulluogh’s system shows that it was

far from thorough. He testified that he had conducted a yearly inspection for 54 Murray Street

and yet could not produce an invoice for it. I find his explanation that he may not have written it

down lacking. He could not possibly keep all of this information in his head. A system should

have been in use that tracked in great detail the state of all of the equipment. His evidence also

— 129 —

reveals that he was not prepared to take action when the employees at the site left a hose lying

around in the yard that could have become damaged somewhere instead of bringing this to the

attention of Mr. Ben-Moshe his partner hid the hose.

[552] Mr. McCullough did not like to work on trucks. With respect to unit 861 there was an

inspection in April of 2008; however, the hose wasn’t with the truck and there is no evidence as

to the state of the yard hose in August of 2008.

[553] There was no evidence that the hose on unit 861 was brand new. The evidence of Mr.

Bennett was that it was manufactured sometime after December of 2006. Mr. Bennett did not say

that there was a manufacturing defect with respect to the hose or the pump, he said that it would

be fair to say that there was a mechanical failure.

General Atmosphere of Safety

[554] As I have discussed this issue earlier in the judgment and will not go into detail at this

point. The decision in Raham makes it clear that the law requires more than a general atmos-

phere of safety. The defendants’ submission that responding to inspector’s orders means that

they have taken reasonable steps to be diligent regarding safety is ill founded. Taking action after

the fact when an inspector has pointed out particular deficiencies does not demonstrate that rea-

sonable care was taken. What is required is a preventative system.

[555] I conclude that the defendants have not established due diligence with respect to this

count and a conviction will be registered.

Analysis -The Ministry of Environment Breach Charges - Information # 0900354

The Validity of the Order and Collateral Attacks

[556] An Order issued by a provincial officer is presumptively valid. In Consolidated Maybrun

Mines Ltd., the Supreme Court of Canada dealt with this issue. The court found that trial courts

lack jurisdiction to consider the merits of an administrative order where the statute involved has

created a separate administrative appeal process for that purpose. As in this case the court was

considering a charge against an accused for failing to comply with an order under the EPA. In

that case, as I have in the case at hand, the defendants had not challenged the order using the ex-

isting appeal mechanism but waited until charges had been laid to take the position that the order

was not valid. The court found that the defendants were not entitled to challenge the validity of

the Order at trial given that they did not avail themselves of the appeal process. Ms. Saxe ad-

dresses collateral attacks in the text, Ontario Environmental Protection Act Annotated. Loose-

leaf (Aurora, ON: Canada Law Book, 2012), and commented on the policy reason for this pro-

hibition at page II-111 as follows:

— 130 —

The validity, correctness or reasonableness of a pollution prevention order can only be attacked in

an appeal to the Environment Review Tribunal, and not in defence to a prosecution for non-

compliance. Permitting defendants to ignore orders with impunity until a prosecution is heard in

the courts would sabotage the just scheme in the Act for balancing the public interest with private

rights.

[557] The defendants were advised by Mr. Warren that if they wanted to attack the Order they

had to do so by availing themselves of the appeal process provided for pursuant to the Environ-

mental Protection Act. Mr. Warren was questioned about this when he was cross-examined by

the Crown in the following series of questions and answers,

Q. You told Mr. -- you told the court that the order was never appealed, you weren’t instructed to

appeal it, I’m sure you did advise your clients of their right to request a review of the order?

A. We did, yes.

Q. And a right to request that the order be appealed if the review was refused?

A. We did.

Q. And I’m sure that you also told themthat if they did not request a review, and appeal, that they

could not then object to the validity of the order if they were subsequently prosecuted?

A. Did we explain the law on collateral attacks on the order, Mr. Adamson?

Q. That’s exactly what I’m suggesting, you must’ve explained the law of collateral attack to

them?

A. I’m not certain that we did use the term collateral attack in discussing it with them, we told

them what the implications would be if they did not appeal the order.

Q. Right. And the implication would be that if they were prosecuted for breach of the order, they

would not in that prosecution, be able to complain about -- or suggest that the order was invalid?

A. We told them that their method of challenging the order was by appeal.

Q. Right. And that was the only method of challenging the order?

A. I can’t remember whether we said that’s -- used the word ‘only’, but that was the advice we

gave them.

[558] The defendants were aware of how they could challenge the order and chose not to do so.

Mr. Adler’s argument is that the defendants are entitled to a plain reading of the document, rely-

ing on the dissent in the Castonguay and Merk decisions; however, the forum for that argument

would have been before the Director and then to the Environmental Review Tribunal.

[559] In this case the appeal process for the Order issued by Ms. White was printed on the back

of the Order itself in plain language. In my view they are not entitled at this trial to attack the

Order on technical matters such as the failure to reference s. 15.1, failure to reference the of-

fence, offence location, failure to provide notice that she was prepared to extend the period of

time required for compliance and that there was no provision for a report to be attached to the

order. They are also not entitled to attack the Order by challenging the reasonableness of it. Alt-

hough it may have been more appropriate to extend the timeline to the next day quick action was

— 131 —

required. The residential area surrounding the site was devastated. 12,000 people, some of whom

were injured, were evacuated in the middle of the night. I also note that Mr. Belahov had the op-

portunity to review the draft Order at 10:00 a.m. that day.

[560] The submission that the Order is incomprehensible is without merit in my view. It would

not be difficult for anyone reading this Order to understand what was required of the defendants.

I find that the Order was both valid and enforceable.

Reliance on Mistaken Legal Advice

[561] The law is very clear that ignorance of the law is no excuse and this is codified in s. 81 of

the Provincial Offences Act. The relevant case law in Mollis, Kotch, Stucky and Eizenga also

makes this clear. The advice given by Mr. Warren with respect to whether or not the Order

could be varied informally was, in my view, incorrect. He did qualify it in the sense that he said

that in his experience this could not be done. It was not clear whether or not he advised his cli-

ents of this.

[562] His advice regarding the deadline, that his clients could not comply because it had

passed, was clarified in his cross-examination where he confirmed that he was aware that the ob-

ligation continued beyond the compliance date. His understanding as to whether or not his clients

had the ability to pay was based entirely on what his clients and other counsel told him regarding

the insurance funds. He did not see any documentation regarding the insurance funds and did not

say whether or not he was aware of bank statements regarding the finances of the company and

its ability to pay from other sources. Mr. Warren confirmed that whether or not the insurance

company would provide funds they were still obliged to comply if there were other funds availa-

ble. Therefore the advice was based on information coming from the clients. There is only inad-

missible hearsay evidence before the court regarding the insurance details and the extent of what

could be done.

[563] Mr. Warren’s advice regarding item two was based on information from his clients that

they had not started to do any clean-up work. This was not correct. Mr. Hicks’ evidence was that

they had started work in the residential area. Again, the advice was based on what the clients had

told him. Even if the advice was incorrect the defendants would not be able to rely upon it as a

defence. This does not amount to officially induced error.

Continuing Offences

[564] In Rutherford the Ontario Court of Appeal dealt with the issue of identifying continuing

offences. The court referred to R. v. Industrial appeals Court, [1965] V.R. 615 where the court

looked to the criminal law to provide some guidance as to how to identify continuing offences

and found that conduct that consists of the persistent failure to do something where the duty to

do it is imposed by law is a continuous one until the duty has been complied with. The Court of

— 132 —

Appeal also stated that it is easier to find a continuing offence where the statute provides for a

penalty for every day that the corrective work is not done. This is the situation before the court.

[565] The defendants were obliged to do a number of things and did not. The penalty section in

the Act provides for fines for each day, or part day, upon which the Act continues. Mr. Warren

informed the defendants of this. This is apparent from the following passage of his cross-

examination,

Q. Mr. Warren, Mr. Adler asked you a number of questions about the significance of the fact that

the, as an example, the 5:00 p.m. August 13^thcompliance time for item number one had passed by

the time your clients actually got the order, I take it from your experience with this order, these

kind of orders, you understand that when a compliance date in an order has passed, the obligation

to comply still continues after that date, right?

A. Yes.

Q. So the fact that your clients got the order after the 5:00 p.m. compliance time didn’t mean that

they were no longer obliged to comply with that, it just meant that they couldn’t have complied by

that time?

A. Yes.

Q. So if they were charged, for instance, with failing to comply by -- if they had for instance,

complied by the next morning at 9:00 a.m., and they were charged for failing to comply by 5:00

p.m., they might be able to say well, we took all reasonable steps, as a defence, right?

A. I don’t know, Mr. Adamson.

Q. But the point is, just to take another hypothetical, if you have a client who’s given a compli-

ance date that gives them a month to comply, right, and they don’t comply by that date, they’re

still obliged by the order to comply after that date, right, that obligation continues?

A. Yes.

[566] In my view the charges before the Court should be categorized as continuing offences.

Count 1. Written confirmation that the company is willing to comply with the require-

ments of the Order (Item 1.) - compliance date- August 13, 2008 by 5 p.m.

[567] The defendants rely on the defence of impossibility in saying that they could not comply

with the order. The defence of impossibility was discussed in the Syncrude, Belman and Can-

chem decisions referred to in the Crown’s submissions. In order to establish that it was impossi-

ble to do the task ordered by the government the defendants must show that it was not possible

physically or morally to comply.

[568] The defendants say that the timelines made it impossible to comply; however, their own

counsel advised them that the obligation to comply with this order was ongoing. The defendants

also say that it was impossible for them to comply with this item of the Order because of insur-

ance problems. There is no admissible evidence before the court that the defendants were not

able to comply with this item, therefore, they have not established that it was impossible for them

— 133 —

to comply. On the contrary, there was evidence established by the bank records filed that there

was a substantial amount of money available to the defendants that was paid out to various par-

ties. I am satisfied beyond a reasonable doubt that the Crown has proven the essential elements

of this count.

Count 2. Provide notification if for whatever reason the company cannot or is unwilling to

comply with the Order (Item 2) verbally and in writing- compliance date -within 12 hours

of August 13, 2008

[569] The evidence of Mr. Warren was that he was in regular contact with counsel for the Min-

istry of the Environment and that he notified counsel that the defendants could not comply with

the Order because of insurance issues.

[570] The defendants did take steps to retain counsel and through counsel to notify the Ministry

that they did not intend to comply with the clean-up order. Given this, the defendants have estab-

lished that they were duly diligent regarding this item.

Count 3. Provide written verification that one or more qualified persons had been hired to

carry out the work required by the Order (Item 4) – compliance date -August 13, 2008 by

5:00 p.m.

[571] In my view the Crown has established the actus reus beyond a reasonable doubt as it was

admitted that there was no compliance with this item. The defendants point to the same defence

of impossibility. I have already determined that this defence is not available to them as per my

comments regarding count 1. The defendants also were not entitled to rely on the advice of Mr.

Warren and have not established that they were duly diligent. I find that the defendants are

guilty of this count.

Count 4. Failure to clean-up the residential area around 54 Murray Road (Item 5)- compli-

ance date –effective immediately August 13, 2008

[572] In my view the evidence is clear that the defendants started the clean-up. Early in the day

on August 11, 2008 Mr. Hicks from Hazco, the clean-up company listed on the defendants emer-

gency response action plan, called Mr. Belahov to advise him that asbestos had been located at

the 54 Murray Road site. Mr. Belahov told him to deal with what Sunrise Propane was responsi-

ble for. Mr. Belahov also committed to meeting with Mr. Hicks, or to have someone go to the

site to meet with him to sign the necessary paperwork. The defendants did not continue the

clean-up efforts and they were required to do so. There was no admissible evidence that the de-

fendants were unable to pay for the clean-up. The actus reus has been proven beyond a reasona-

ble doubt and as there is no viable defence they are guilty of this count.

Count 5 Failure to provide a written residential clean-up plan- compliance date – August

14, 2008

— 134 —

[573] The defendants were not entitled to rely on the advice of Mr. Warren in this regard.

Again there is no evidence that the defendants were unable to pay for the clean-up and the clean-

up plan did not have to be complicated. It could have been contained in an email. Therefore, the

defendants are guilty of this count.

Count 6 and 7

[574] Mr. Ben-Moshe and Mr. Belahov admitted to being directors of the accused corporations.

Section 194(1) of the EPA imposes a duty on directors to take all reasonable care to prevent the

corporation from contravening an Order under the EPA. The actus reus has been proven beyond

a reasonable doubt as I have found that the corporation failed to comply with the Order. The de-

fendants have not established that they were duly diligent. Mr. Shay Ben-Moshe is found guilty

of count 6 and Mr. Valery Belahov is found guilty of count 7.

Conclusion

In conclusion the verdicts are as follows,

Occupational Health and Safety Act Offences

Information # 05001902

Count 1 - On the charge that on or about August 10, 2008, in the City of Toronto or elsewhere in

the Province of Ontario, Sunrise Propane Energy Group Inc. failed as an employer to provide

information, instruction and supervision to a worker to protect the health or safety of the worker

at a workplace contrary to s. 25(2) of the Occupational Health and Safety Act - guilty

Count 2 - On the charge that on or about August 10, 2008, in the City of Toronto or elsewhere in

the Province of Ontario, Sunrise Propane Energy Group Inc. failed as an employer to take every

precaution reasonable in the circumstances for the protection of a worker at a workplace contrary

to s. 25(2)(h) of the Occupational Health and Safety Act - guilty

Environmental Protection Act Offences – Information # 10400978

On the charge that Sunrise Propane Energy Group Inc. and 1367229 Ontario Group, in the City

of Toronto or elsewhere in the Province of Ontario discharged on August 10, 2008 or caused or

permitted the discharge of a contaminant, namely sound, vibration, heat, gas vapour or solids in-

to the natural environment that caused or was likely to have caused an adverse effect contrary to

s. 14(1) of the Environmental Protection Act - guilty

Environmental Protection Act Offences – Information # 09300354

Count 1- on the charge that on or about August 14, 2008 at 54 Murray Road, in the City of To-

ronto or elsewhere in the Province of Ontario, Sunrise Propane Energy Group - failed to comply

with a provincial officer’s Order item number 1 contrary to s. 186(2) of the Environmental Pro-

tection Act - guilty

— 135 —

Count 2 – on the charge that on or about August 24, 2008 at 54 Murray Road, in the City of To-

ronto or elsewhere in the Province of Ontario, Sunrise Propane Energy Group failed to comply

with a provincial officer’s Order item number 2 contrary to s. 186(2) of the Environmental Pro-

tection Act - not guilty

Count 3 – on the charge that on or about August 24, 2008 at 54 Murray Road, in the City of To-

ronto or elsewhere in the Province of Ontario, Sunrise Propane Energy Group failed to comply

with a provincial officer’s Order item number 4 contrary to s. 186(2) of the Environmental Pro-

tection Act - guilty

Count 4 –on the charge that on or about August 24, 2008 at 54 Murray Road, in the City of To-

ronto or elsewhere in the Province of Ontario, Sunrise Propane Energy Group failed to comply

with a provincial officer’s Order item number 5 contrary to s. 186(2) of the Environmental Pro-

tection Act - guilty

Count 5 – on the charge that on or about August 24, 2008 at 54 Murray Road, in the City of To-

ronto or elsewhere in the Province of Ontario, Sunrise Propane Energy Group failed to comply

with a provincial officer’s Order item number 6 contrary to s. 186(2) of the Environmental Pro-

tection Act - guilty

Count 6 – on the charge that Mr. Shay Ben-Moshe, during the period beginning on or about Au-

gust 14, 2008 and ending on or about August 24, 2008 at 54 Murray Road, in the City of Toronto

or elsewhere in the Province of Ontario, did commit the offence of being a Director of a corpora-

tion and failed to take all reasonable care to prevent the corporation from contravening a provin-

cial officer’s Order contrary to s. 194(2) of the Environmental Protection Act - guilty

Count 7 – on the charge that Mr. Valery Belahov during the period beginning on or about Au-

gust 14, 2008 and ending on or about August 24, 2008 at 54 Murray Road, in the City of Toronto

or elsewhere in the Province of Ontario, did commit the offence of being a Director of a corpora-

tion and failed to take all reasonable care to prevent the corporation from contravening a provin-

cial officer’s Order contrary to s. 194(2) of the Environmental Protection Act -guilty

Released:

June 27, 2013

Signed: “Justice L. Chapin”