Her Majesty the Queen (Ministry of Labour for Ontario) v. Pioneer Construction Inc. [Indexed as: Ontario (Ministry of Labour) v. Pioneer Construction Inc.]
79 O.R. (3d) 641
[2006] O.J. No. 1874
Docket Nos. C44106 and C44117
Court of Appeal for Ontario,
Weiler, Rosenberg and MacPherson JJ.A.
May 12, 2006
Charter of Rights and Freedoms -- Trial within reasonable time -- Corporate defendant moving for stay of proceedings on basis of unreasonable delay -- Motion dismissed for non- compliance with s. 109 of Courts of Justice Act -- Provincial offences appeal judge ordering that application be returned to trial court for rehearing -- Corporate defendant required to establish on appeal that there was live issue that its fair trial had been prejudiced by delay -- Corporate defendant unable to rely on presumption of prejudice resulting from passage of time -- Appeal judge erring in referring matter back for rehearing in absence of some evidence of actual prejudice -- Canadian Charter of Rights and Freedoms, s. 11(b) -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109.
Employment -- Occupational health and safety -- Offences -- Meaning of "employer" -- Defendant having contractual relationship with common carrier for deliveries to defendant's work site -- Employee of common carrier injured while trying to unblock flow of sand from truck to conveyer belt at defendant's work site -- Defendant "employer" of employee while employee was working in workplace controlled by defendant and providing services to defendant -- Defendant properly convicted of failing as employer to guard moving machinery and to provide instruction and supervision to worker.
The defendant had a contractual relationship with a common carrier for the delivery of a mixture of sand and salt to the defendant's work site. The defendant had purchased and installed a Low-level Unloader with conveyer to move the sand mixture from the trucks. C, a driver employed by the common carrier, was injured on September 21, 2001 while attempting to unblock the flow of sand from the truck to the conveyer belt. The accident would not have occurred had guarding been in place. After the accident, the defendant directed employees to install proper guards in the area where the accident occurred. On September 17, 2002, the defendant was charged with failing, as an employer, to guard moving machinery and to provide instruction and supervision to a worker contrary to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 and Industrial Establishments, R.R.O. 1990, Reg. 851.
In September 2003, the trial was scheduled for March 22, 2004. The defendant brought an application for a stay of proceedings on the basis that its right under s. 11(b) of the Canadian Charter of Rights and Freedoms to a trial within a reasonable time was infringed but did not serve its Notice of Constitutional Question until March 5, 2004. The trial judge dismissed the motion on the basis that the defendant had not complied with s. 109 of the Courts of Justice Act, as the Notice of Constitutional Question was not served as soon as the circumstances requiring it became known -- i.e., in September 2003. The defendant was found guilty of the offences charged. On appeal, the conviction was affirmed. The defendant appealed that part of the judgment. The s. 11(b) motion was ordered returned to the Ontario Court of Justice for rehearing and disposition. The Crown appealed that part of the judgment. [page642]
Held, the defendant's appeal should be dismissed; the Crown's appeal should be allowed.
The provincial offences appeal judge did not err in upholding the trial judge's decision that the defendant was the "employer" of a non-employee driver. The defendant had contracted for C's services through his immediate employer, and became the "employer" of C when C was working in a workplace controlled by the defendant, providing services to the defendant.
The appeal judge erred in setting aside the trial judge's exercise of his discretion to not relieve the defendant from its non-compliance with s. 109 of the Courts of Justice Act. As a corporate defendant, the defendant was required to establish on appeal that its right to a fair trial was prejudiced by the delay. There was nothing on the record to indicate that the defendant's ability to make full answer and defence was prejudiced. There was no evidence that the pre-charge delay adversely affected the fairness of the trial. With respect to post-charge delay, the defendant could not rely on the presumption of prejudice resulting from the passage of time that arises respecting an individual accused. The inference of prejudice arising from the passage of time alone is linked to the liberty and security interests of an accused, not the fair trial interest. A corporate entity does not have the right to liberty and security of the person within the meaning of s. 7 of the Charter. In the absence of some evidence of actual prejudice, the appeal judge erred in referring the matter back for a hearing. The appeal judge also erred in stating that the s. 11(b) motion should have been argued at the end of the trial. A motion to stay proceedings for a s. 11(b) breach is ordinarily argued before trial absent unusual circumstances, which did not exist here.
APPEAL by the defendant from the judgment of Gordon J. of the Superior Court of Justice, sitting as a provincial offences appeal judge, dated June 8, 2005, allowing in part an appeal from the conviction entered by Lebel J., [2004] O.J. No. 5865, 64 W.C.B. (2d) 212 (C.J.); APPEAL by the Crown from a judgment of the provincial offences appeal judge ordering a motion for a stay of proceedings to be returned to trial court for rehearing. [page643]
R. v. Wyssen (1992), 1992 7598 (ON CA), 10 O.R. (3d) 193, [1992] O.J. No. 1917, 58 O.A.C. 67, 9 C.O.H.S.C. 133, 17 W.C.B. (2d) 223 (C.A.), folld Other cases referred to R. v. CIP Inc., 1992 95 (SCC), [1992] 1 S.C.R. 843, [1992] S.C.J. No. 34, 135 N.R. 90, 9 C.R.R. (2d) 62, 71 C.C.C. (3d) 129, 12 C.R. (4th) 237; R. v. L. (W.K.), 1991 54 (SCC), [1991] 1 S.C.R. 1091, [1991] S.C.J. No. 40, 124 N.R. 146, [1991] 4 W.W.R. 385, 4 C.R.R. (2d) 298, 64 C.C.C. (3d) 321, 6 C.R. (4th) 1; R. v. National Steel Car Ltd. (2003), 2003 30223 (ON CA), 63 O.R. (3d) 693, [2003] O.J. No. 856, 174 C.C.C. (3d) 91 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(b) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109 [as am.] Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 25 Rules and regulations referred to Regulations for Industrial Establishments, R.R.O. 1990, Reg. 851, s. 24
Daniel Kleiman, for Ministry of Labour for Ontario. Norman A. Keith and Goldie Bassi, for Pioneer Construction Inc.
[1] BY THE COURT:-- Pioneer Construction Inc. ("Pioneer") appeals that portion of the judgment of Gordon J. of the Superior Court of Justice dismissing its appeal from the judgment of Lebel J. of the Ontario Court of Justice and holding that Pioneer failed, as an employer, to guard moving machinery and to provide instruction and supervision to a worker to protect the health and safety of the worker contrary to s. 25(1)(a) and 25(2)(a) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA") and s. 24 of the Regulations for Industrial Establishments, R.R.O. 1990, Reg. 851.
[2] The Crown appeals the part of the judgment of Gordon J. ordering that a s. 11(b) Canadian Charter of Rights and Freedoms motion be returned to the Ontario Court of Justice for rehearing and disposition.
Facts
[3] The following facts are largely drawn from the trial judge's reasons.
[4] On September 5, 2001, Rob Carr was hired as a Belly Dump Truck Driver by P.D. Brooks. P.D. Brooks and Pioneer had a contractual relationship wherein P.D. Brooks delivered a mixture of sand and salt to Pioneer's work site at the Ministry of Transportation's ("M.T.O.") "dome" site in West Nipissing. Pioneer had purchased and installed a Low-level Unloader with conveyor to move the sand mixture from the Belly Dump Truck to the Sand Domes.
[5] On September 21, 2001, Mr. Carr delivered a load to the M.T.O. site at approximately 7:00 a.m. He positioned the dump portion of the truck over the conveyor belt and exited his truck. Hugo Lafreniere, Pioneer's Site Foreman/Supervisor, was the operator of the Unloader at that time. Mr. Carr walked across the conveyor belt and joined Mr. Lafreniere. He was not told to remain in the truck. Mr. Lafreniere then started the Unloader and left the area to make a phone call. Mr. Lafreniere was not present at the time of the accident.
[6] Mr. Carr soon noticed that the flow of sand from the dump truck to the conveyor belt had ceased. Accordingly, he picked up a sledgehammer that was kept beside the Unloader by Pioneer and started to bang the dump box to loosen the sand. Mr. Carr did so while the Unloader was running. He did not shut the machine off as he felt that it was not his place to do so. Mr. Carr used the sledgehammer because he had seen others, including Mr. Lafreniere, use it. [page644]
[7] While banging on the side of the truck, a large portion of sand fell onto the conveyor belt and caught Mr. Carr's left foot, causing him to lose his balance. Mr. Carr fell on the conveyor belt and screamed. The Unloader was shut off by another Pioneer employee, Stephane Girouard. In the result, Mr. Carr's legs had to be amputated below the knee.
[8] Mr. Carr was not given any specific training on how to use the equipment and never received safety training. He was told that Pioneer would show him how to use the equipment. Kenneth Edwards, Pioneer's Vice-President of Operations, confirmed that on the date in question the guards supplied by the manufacturer for the tail piece of the equipment were not installed. (The tail piece was not involved in the accident.) After the accident, Mr. Edwards directed his employees to install proper guards in the area where the accident occurred and candidly stated that had the guarding been in place prior to the accident the accident would not have happened.
[9] On June 15, 2004, following a trial, Pioneer was convicted of two offences under the OHSA. On June 8, 2005, Gordon J. allowed Pioneer's appeal in part, ordering that the s. 11(b) Charter motion be returned to the Ontario Court of Justice for rehearing and disposition but otherwise upholding the convictions.
[10] The facts particularly relevant to the s. 11(b) Charter issue are as follows.
[11] Mr. Carr sustained his injury on September 21, 2001. On September 17, 2002 (four days before the end of the limitation period), charges were laid by Information. The first appearance was on October 21, 2002. On October 15, 2002, the Crown elected to have the matter heard by a judge of the Ontario Court of Justice. Accordingly, the case was adjourned to December 5, 2002, before a judge in Sturgeon Falls.
[12] On that date, the case was adjourned to March 6, 2003, with a judicial pre-trial scheduled for January 22, 2003. Counsel agreed that the pre-trial would take place by teleconference so that personal attendance would not be required. On March 6, 2003, the Crown informed the court that it was prepared to set trial dates. The defence requested further time to continue resolution discussions. The court agreed and the matter was adjourned to June 5, 2003.
[13] On June 5, 2003, the presiding justice adjourned the case to June 17, 2003, so that trial dates could be co- ordinated with the regional senior justice. The case was made returnable in North Bay, as it was thought by the presiding justice that it would be easier to obtain consecutive trial dates there. [page645]
[14] On June 17, 2003, it did not prove possible to set the trial dates in North Bay and the case was adjourned back to Sturgeon Falls. On July 3, 2003, the trial was tentatively set for North Bay for five days beginning January 19, 2004 -- the first dates in that year available to the defence. Justice Lebel subsequently advised that he had a conflict with those dates and that the trial would have to be rescheduled. It was eventually rescheduled for five days beginning March 22, 2004.
[15] Pioneer was aware of the circumstances giving rise to the s. 11(b) issue in September 2003, when the trial dates were set for March 2004. On February 25, 2004, the Ministry of Labour was served with Pioneer's s. 11(b) Notice of Motion, which was made returnable on the first day of trial. Pioneer's Notice of Constitutional Question was served on March 5, 2004 on the Attorneys General of Ontario and Canada, as well as on the Ministry of Labour. The trial judge asked counsel for an explanation as to why notice had not been served when the trial date was known in September 2003. Counsel said that it was his understanding that the motion had to be served after arraignment at the start of the trial and he was also hopeful of a resolution with the Ministry.
[16] Justice Lebel dismissed the motion on the basis that Pioneer had not complied with s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as the Notice of Constitutional Question was not served as soon as the circumstances requiring it became known -- i.e., in September 2003. On appeal, Gordon J. overturned this ruling and sent the s. 11(b) motion back to the Ontario Court of Justice for rehearing and disposition.
Issues
[17] We will first deal with the issues raised by Pioneer in its appeal.
Did the appeal justice err by failing to hold that a trial judge is strictly prohibited from considering an employer's voluntary, post-accident safety improvements in determining proof of the offence beyond a reasonable doubt, and the reverse onus on the appellant to prove the defence of due diligence on a balance of probabilities?
[18] Regardless of whether the evidence of post-accident conduct was admissible, Gordon J. was correct in his determination that the evidence of post-accident conduct did not affect the core of the trial judge's reasons. Accordingly, we would dismiss this ground of appeal. [page646]
Did the appeal justice err in upholding the trial judge's decision that Pioneer was the "employer" of a non-employee driver, who was directly employed by P.D. Brooks, a common carrier that was delivering sand to the M.T.O. yard?
[19] The reasons in R. v. Wyssen (1992), 1992 7598 (ON CA), 10 O.R. (3d) 193, [1992] O.J. No. 1917 (C.A.) are dispositive of this issue and we see no reason to revisit them. There was no dispute that Pioneer had contracted for Mr. Carr's services through his immediate employer, P.D. Brooks. Just as a contractor who hires the services of a tradesperson through another employer (a subcontractor) assumes responsibilities as an employer for that tradesperson while that person is working in a workplace under the control of the contractor, so Pioneer became the employer of Mr. Carr when he was working in a workplace controlled by Pioneer providing services to Pioneer. The narrow definition of "employer" advanced by Pioneer is inconsistent with a purposive interpretation of the statute. This ground of appeal also fails.
Did the appeal justice err in holding that the trial judge did not err in his failure to properly review the evidence of due diligence and give meaningful reasons for judgment in rejecting both branches of the due diligence defence in the face of an abundance of evidence to support the defence?
[20] The appellant concedes this issue was not raised as a ground of appeal before the provincial offences appeal judge. Rather, Pioneer was satisfied to argue that the trial judge erred "when he failed to consider all relevant evidence with respect to the two branches of the defence of Due Diligence". The appeal judge fully considered and dismissed this ground of appeal by reference to the trial judge's reasons. We see no error in his conclusion. In any event, we are satisfied that the reasons were sufficient to conduct meaningful appellate review.
[21] Pioneer's appeal is therefore dismissed.
[22] We turn now to the issues raised in the Crown's appeal.
Did the appeal court err in setting aside the trial judge's exercise of his discretion to not relieve Pioneer from its non- compliance with s. 109 of the Courts of Justice Act?
[23] The trial judge held that Pioneer's explanation for not bringing its motion in advance of the trial date was without merit and this played a significant role in his decision to dismiss the motion. He held that the parties knew he was the trial judge and it would appear from the comments on the record that the [page647] practice in that jurisdiction is to bring s. 11(b) motions in advance of the trial date. Although the trial judge was advised by Pioneer's counsel that the argument of the motion would only take about an hour, the trial judge appears to have been of the opinion that the trial time set aside would be compromised. In fact, on the trial date Pioneer did not have all of the transcripts of the hearing dates, including the December 5, 2002 date when the defence requested an adjournment. To obtain all of the transcripts might well have required a further adjournment and consequent delay.
[24] Pioneer submits that because it was not able to argue the motion, it cannot be said that the motion was without merit. We disagree. As a corporate defendant, Pioneer is required to establish on appeal that there is a live issue that its right to a fair trial has been prejudiced by the delay: see R. v. CIP Inc., 1992 95 (SCC), [1992] 1 S.C.R. 843, [1992] S.C.J. No. 34, at pp. 861-63 S.C.R. The only specific allegation of prejudice that Pioneer made was that a witness had gone missing. The Crown provided the name and address of the witness to the defence well in advance of the trial and Pioneer chose not to call the witness. There is nothing on the record or on the appeal to the provincial offences appeal court to indicate that Pioneer's ability to make full answer and defence was prejudiced.
[25] The appeal judge held that the preferable time to raise a s. 11(b) motion is at the end of a trial. In thus holding, he had regard to decisions dealing with lost or destroyed evidence when the effect of the missing evidence on the ability to make full answer and defence or to have a fair trial could only be assessed after the rest of the evidence had been heard. While there was an allegation of lost evidence here, by the opening of the trial it was no longer an issue and no missing evidence was specifically delineated before the appeal judge or before us. The only suggestion of prejudice now put forward is the pre-charge delay of 11 months and the post-charge delay. Pre- charge delay is a factor to consider respecting trial fairness: see R. v. L. (W.K.), 1991 54 (SCC), [1991] 1 S.C.R. 1091, [1991] S.C.J. No. 40, at p. 1100 S.C.R. However, in this case there is no evidence that the pre-charge delay adversely affected the fairness of the trial. Just as this court has held in R. v. National Steel Car Ltd. (2003), 2003 30223 (ON CA), 63 O.R. (3d) 693, [2003] O.J. No. 856 (C.A.), that the mere existence of pre-charge delay cannot justify granting a stay of proceedings, so, too, must it be held that the mere existence of pre-charge delay cannot justify granting a s. 11(b) motion.
[26] With respect to post-charge delay, Pioneer cannot rely on the presumption of prejudice resulting from the passage of time that arises respecting an individual accused. As the Supreme [page648] Court of Canada held in CIP Inc., supra, the inference of prejudice arising from the passage of time alone is linked to the liberty and security interests of an accused, not the fair trial interest. A corporate entity does not have the right to liberty and security of the person within the meaning of the Charter. Pioneer submits that the passage of time may have affected the memory of some witnesses or resulted in documents, which it could not specify, being unavailable. Thus, Pioneer has not put forward any basis for finding an actual impairment of its ability to make full answer and defence. In the absence of some evidence of actual prejudice, the appeal judge erred in referring the matter back for hearing.
[27] Finally, we disagree with the view of the appeal judge that the s. 11(b) motion should have been argued at the end of the trial. A motion to stay proceedings for a s. 11(b) breach is ordinarily argued before trial absent unusual circumstances, which did not exist here.
[28] Accordingly, the Crown's appeal on the s. 11(b) issue is allowed, the decision of the appeal judge in this regard is set aside, and Pioneer's conviction is affirmed.
Defendant's appeal dismissed;
Crown's appeal allowed.