Court Information

Information No.: 100062

Ontario Court of Justice (at Cayuga, Ontario)

Parties

Between:

Her Majesty the Queen in Right of Ontario as represented by The Ministry of Labour

Respondent

- and -

Stratford Chick Hatchery Ltd.

Appellant

Counsel

For the Appellant: Mr. N.J. Smitheman and Mr. A. Di Domenico

For the Respondent: Ms. A. Gordon-Fagan

Before: Nadel, J.

The Nature of the Appeal

1This is a conviction appeal pursuant to s. 116 of the Provincial Offences Act. The appellant/employer (Stratford) was convicted of failing to take every precaution reasonable in the circumstances for the protection of a worker in a workplace, contrary to s. 25(2)(h) of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1. The allegation was particularized to allege that the employer "failed to take the reasonable precaution of ensuring that adequate access and/or egress was provided for a transport storage trailer." The incident in question occurred on June 24, 2009. A conviction was registered on April 27, 2011 following a trial conducted on January 19, 2011 before His Worship Justice of the Peace D. MacDonald. The appeal was argued on January 30, 2013.

2The charge was laid after an employee fell and broke her left leg while climbing down from the storage trailer. She had backed out of the trailer onto a set of portable steps, which the employer had supplied to its employees to access the trailer. The surface of the top step was 24 inches lower than the floor of the trailer, which was used to store paper liners placed into the crates in which Stratford's chicks were shipped.

The Section in Issue

3Occupational Health and Safety Act

R.S.O. 1990, c. O.1

PART III DUTIES OF EMPLOYERS AND OTHER PERSONS

SECTION 25

Duties of employers

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 construction,
  • (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.

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;
• (b) in a medical emergency for the purpose of diagnosis or treatment, provide, upon request, information in the possession of the employer, including confidential business information, to a legally qualified medical practitioner and to such other persons 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 handling, storage, use, disposal and transport of any article, device, equipment or a biological, chemical or physical agent;
• (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 under such age as may be prescribed to be in or about a workplace;
• (h) take every precaution reasonable in the circumstances for the protection of a worker; (emphasis added)
• (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 occupational health 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 occupational 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 occupational health 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.

Idem

(3) For the purposes of clause (2)(c), an employer may appoint himself or herself as a supervisor where the employer is a competent person.

Same

(3.1) Any explanatory material referred to under clause (2)(i) may be published as part of the poster required under section 2 of the Employment Standards Act, 2000.

Idem

(4) Clause (2)(j) does not apply with respect to a workplace at which five or fewer workers are regularly employed.

The Standard of Review

Relying on Housen v. Nikolaisen, 2002 SCC 33, at paragraphs [36] and [37], Stratford submits that His Worship's decision is infected by a purely legal error that is extricable from his findings of fact in his application of s. 25(2)(h). As a consequence he erred in law in finding that the Ministry had proved the actus reus of the offence. Hence, Stratford submits that this appeal should be determined by a review on the standard of "correctness." That standard does not require that deference be shown to the decision under appeal. The only question on this standard of review is whether the decision appealed from was right or wrong. The Ministry takes a contrary view. It submits that the appropriate standard of review is one of "palpable and overriding error" as the decision in question is one of "mixed law and fact." Since I am of the view that the decision arrived at by His Worship Justice of the Peace was and is correct I need not delve into the intricacies of this contest. In my view, for the reasons to be given, His Worship did not err and this appeal is dismissed.

The Evidence

4Mary Ellen Rouse, the injured employee, was 59 years old. She had been working for Stratford and its predecessor for ten years doing a variety of jobs including packaging chicks for delivery. The chicks are packed in paper-lined crates and those liners are stored until they are needed in a transport trailer used as a storage facility.

5The transport trailer is moveable. It had been positioned elsewhere on the property in times past but for the eight months to perhaps one year prior to June 24, 2009 it was positioned at the spot where Ms. Rouse was injured.

6On June 24, 2009 Ms. Rouse required more paper liners and went to fetch some from the trailer. This was a task that she performed at least weekly. She carried out the task in a manner that she had developed for the trailer's current location.

7That manner was to climb a portable set of three steps provided by the employer. The top step was 24 inches below the floor of the trailer so that when she got to the top step she would grab onto the doors of the trailer and then hoist herself into the trailer, apparently by pulling herself onto her stomach and then standing up when she was sufficiently far into the trailer to do so. Her evidence in that regard was not completely consistent as she also said that after she got her right leg up and onto the floor of the trailer she could then pull herself into the trailer.

8Once inside she would go about collecting the paper liners that she needed. Having collected as many bundles of paper liners as she required she would place them near the door of the trailer where she could reach them once she had climbed back down from the trailer.

9She then had to climb down from the trailer backwards lying on her stomach on the floor of the trailer because of the distance between the floor of the trailer and the top step of the portable set of steps provided. She could not step down facing forwards given the 24 inch rise between top step of the set of steps and the trailer's floor. Ms. Rouse testified that her method of climbing down from the trailer required that she lay down on her stomach so that she could push her legs out to be able to get a foot down onto the top of the set of steps and then get her other leg down to that step. Having done that, she would then be able to hold onto the inside of the door and once both feet were on the top step she could climb down the steps.

10Finally, it should be noted that these steps apparently worked well before the trailer was moved to the spot where the incident happened. Ms. Rouse suggested that in its former location the trailer's tires were deflated and it was somewhat embedded into the ground so that the height of the rise between the top of the set of steps and the floor of the trailer was less than the current rise that was proved by the Ministry of Labour inspector to be two feet. The nature of the portable set of steps and the distance between the top of those steps and the floor of the trailer were exhibited in photographs filed at trial.

The Positions of the Parties at Trial

11The parties were agreed that this was a strict liability offence that required the prosecutor to prove the elements of the offence, as particularized, beyond a reasonable doubt. Equally, they were agreed that if the elements of the offence, as particularized, had been proved then the defendant was entitled to an acquittal if it demonstrated, on the balance of probabilities, that it had exercised due diligence in taking every precaution reasonable in the circumstances for the protection of its worker.

12The parties were also agreed that a dictionary definition of the word "adequate" was appropriate for use in determining whether the employer "failed to take the reasonable precaution of ensuring that adequate access and/or egress was provided for a transport storage trailer." However the prosecutor also submitted that the court could resort to the definition of "adequate" as defined in a construction industry regulation. The defendant objected to the use of this extrinsic definition given that, in its submission, it only applied to the construction industry and given that the legislature had not seen fit to promulgate any regulatory definition of the word adequate in relation to farming operations.

13Ultimately, the prosecutor, relying on dicta in the reported cases, submitted that the Act was remedial legislation; that it was designed to protect workers, even from their own momentary negligence or recklessness and that it should be interpreted liberally in that light and to achieve that end.

14While the defendant agreed that the charge was a public welfare offence, it stressed that the defendant only needed establish the defence of reasonable care on the balance of probabilities. Without conceding that the prosecutor had met its burden of proof, the defence submitted that Stratford's actions fell squarely within the prosecutor's dictionary definition of "adequate", viz "Sufficient, satisfactory, often with the implication of being barely so."

15Additionally, the defence submitted that:

• no one foresaw this use of these steps as a danger;
• there is no inherent danger in using a stepladder;
• one must use and Ms. Rouse did use the three contact approach; i.e., having three limbs in contact with the ladder and/or the trailer at all times;
• there was no evidence of any complaint made by Ms. Rouse or anyone else respecting the use of the step of steps;
• Ms. Rouse testified that she didn't see it as a real concern and that she did not have any hesitation in using the steps;
• moreover, there was no evidence of any complaints or focus by the joint health & safety committee of the employer with respect to the use of these steps with this trailer.
• Ultimately, this was an unfortunate accident but not every accident implies fault and the fall does not mean the employer failed to take all reasonable precautions.

16Relying on authorities cited, Stratford submitted that while it was required to take all reasonable steps to avoid harm it was not required to take all conceivable steps. The duty cast on an employer is not to meet a standard of perfection. Rather, the standard is one of reasonableness demonstrated on the balance of probabilities, which is a standard that is not designed to prevent every possible accident or anticipate every possible failure by workers to comply with the legislation. The legislation only mandates the exercise every reasonable precaution. It is not a standard of perfection. Ultimately, Stratford submitted that to convict in this case, on these facts, would be insist on a level of perfection that only comes into focus with hindsight.

17Rather than doing that, Stratford submitted that the way to approach the issue was to ignore the accident and just look at the facts. In doing so the defence submitted that it is apparent there is nothing unsafe about the use of a "stepladder" to gain access to the back of a trailer. This is especially clear when one takes into account that this stepladder has been used by this particular individual in this location for 8 to 12 months at least once a week. In the result, the defendant submitted that the prosecutor had failed to prove beyond a reasonable doubt that the employer failed to take every precaution reasonable in the circumstances, and in any event on the evidence the defendant had proved, on the balance of probabilities, that it had exercised due diligence in its obligation to take every reasonable precaution in the circumstances.

The Judgment at Trial

18On April 27, 2011 His Worship Justice of the Peace D. MacDonald reviewed the charge, the evidence and the submissions made and concluded, adopting the submission of the prosecutor, that this was an accident waiting to happen. He found that the fact that this worker or other workers were not injured earlier was a matter of luck, as opposed to evidence of statutory compliance. His Worship determined that had the Ministry of Labour investigated the situation, it would have determined that the set of steps provided were inadequate to comply with s. 25(2)(h) of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1. That is to say that he found that the prosecutor had established the elements of the offence beyond a reasonable doubt and the defence of due diligence has not been established on a balance of probabilities. According, he found the defendant guilty of the offence, and registered a conviction.

The Appellant's Written Submissions

19As noted above at paragraph [3], the position of the appellant is that the Justice of the Peace made a number of legal errors that are reviewable on the standard of "correctness." The essential error alleged is that the Justice of the Peace relied upon O. Reg. 213/91 referred to and footnoted at paragraph [12], supra. This regulation has no application to farming operations. In the submission of the appellant this inappropriate reliance is evident in the Justice's reasons for judgment.

20Moreover, the appellant submitted that the standard of care that it was required to meet is contained within the four corners of the Farming Guidelines, set out in the Farming Operations Regulation 414/05 and that the Justice of the Peace erred in failing to find that the appellant had met that standard of care, as nothing was shown to have occurred which contravened any part of section 5 of those guidelines entitled "Falls, Slips and Trips".

21Stated differently, the appellant submitted that the Justice of the Peace ignored both the Guidelines and the content of the Farming Operations Regulation, O.Reg. 414/05. Moreover, and contrary to the maxim expressio unius est exclusio alterius, the Justice of the Peace imported and applied the concept of "adequacy" from the O. Reg. 213/91, a part of the Construction Projects Regulations, despite the concept of "adequacy" being absent from the Farming Operations Regulation, O. Reg. 414/05, and despite that concept being absent from incorporation into farming operations by virtue s. 4(2) of the that regulation, which specifically lists the only Ontario Regulations that apply to farming operations.

22In addition to all of the foregoing, the appellant further submitted that the Crown had failed to meet its burden of proof and that the Justice of the Peace erred in finding that the "stepladder" in use was an "accident waiting to happen" or that it was "simply luck" that the employee or one of her coworkers was not injured earlier. These submissions were predicated on the submission that (i) there is nothing inherently dangerous about using a "stepladder" particularly when the three point contact method is employed and (ii) the lack of any of complaint or injury in the history of that ladder's use. As a result, the appellant submitted that the Justice of the Peace erred in concluding that the Crown had met its burden of proving the actus reus of the offence to the exclusion of any reasonable doubt.

23The appellant submitted that the final error committed by the Justice of the Peace was his conclusion that the appellant had failed to establish the defence of due diligence, since that defence does not demand that all conceivable steps be taken to avoid an accident. In the appellant's submission the Justice of the Peace treated the offence as one of absolute liability. In the appellant's submission, the Justice of the Peace gauged and rejected the appellant's claim of due diligence inappropriately by the use of hindsight and after-the-fact reasoning based upon the fact that an accident that an accident involving the use of the set of steps had occurred.

24In brief compass, the appellant submitted that the evidence of the injured employee establishes that she used the safety standards recommended by the Farming Guidelines and that the appellant "exercised reasonable care in the circumstances and ought not to have been convicted of the offence with which it was charged."

The Respondent's Written Submissions

25The respondent submitted that the defendant failed to provide the precaution particularized in the information; namely, that it failed to take the reasonable precaution of ensuring that adequate access and /or egress was provided for a transport storage trailer. In the respondent's submission, providing a stepladder that leaves a "two foot gap" between the top of the stepladder and the floor of the trailer is proof of the defendant's failure to provide the precaution.

26Additionally, the respondent submitted that the very fact of the fall permitted the trial court to infer that the gap was a hazard against which the employer was obliged to respond since the section required the employer to take every reasonable precaution in the circumstances that obtained.

27The respondent submitted that the "two foot gap" and the need of employees to go into and out of the storage trailer proved the actus reus beyond any reasonable doubt and that the defendant did not establish due diligence on the balance of probabilities. In the respondent's submission simply adducing the evidence of the employee to the effect that she maintained three points of contact while going into or coming out of the trailer does not meet the test of due diligence. Further, the respondent submitted that the appellant did not demonstrate that it took any reasonable precautions.

28While conceding that in addition to the dictionary definition of the word "adequate", the Justice of the Peace referred to the definition found in O. Reg. 213/91, the respondents submitted that he did not endorse any particular definition of the word. Alternatively, the respondent submitted that even if the construction regulation definition was used by the Justice of the Peace doing so did not constitute an error, since (i) that regulation's definition was essentially the dictionary definition and (ii) the issue of adequacy, as particularized fell to be determined by the facts as opposed to being determined by any legal definition of that term.

29Finally, the respondent submitted that Justice of the Peace MacDonald's finding that the appellant failed to take the reasonable precaution particularized was a find of fact and entitled to deference on this appeal.

The Oral Submissions of the Appellant

30Without resiling from his submission that, on the evidence, Stratford had demonstrated due diligence with respect to its obligations under s. 25(2)(h), Mr. Smitheson limited his oral submissions to the question of whether the Ministry had proved a breach of the section beyond a reasonable doubt as determined by the Justice of the Peace. He submitted that that finding of guilt was vitiated by legal error as a result of the following argument that I shall paraphrase.

(i) The offence as particularized is not an offence known to the law of Ontario because, due to a lacuna in the legislation and the regulations, the concept of "adequacy" does not apply to farming operations, except perhaps if those operations require employees to work at a height above three metres. Given that state of affairs, the Justice of the Peace erred in finding that the Ministry had proved the actus reus of the offence so that the question of due diligence was never reached. The legislative basis of that submission takes the following route.

(ii) To begin with s. 4(1) of the Farming Regulation, O. Reg. 414/05 provides that despite the Occupational Health and Safety Act applying to farming operations only those regulations specifically identified in s. 4(2) of the Farming Regulation apply to farming operations. None of the identified regulations have anything to do with the allegation at issue. Most significantly O. Reg. 213/91 dealing with the construction industry is not one of the regulations applicable to farming operations. Hence the definition of "adequate" a word used in the particularization of the alleged offence has no application to the incident at issue. To the extent that the Justice of the Peace applied the definition in that construction industry regulation to the case at bar he imported a definition specifically excluded from applying to farming operations by the Legislature; viz expressio unius est exclusio alterius. Why the Legislature decided to exempt a definition of adequacy or even the concept of adequacy from application to farming operations is not a matter the Stratford need explain.

(iii) The only content or commentary dealing with slips and falls in farming operations is found in the "Occupational Health and Safety Guidelines for Farming Operation In Ontario", that were filed as Exhibit 4 at trial. Section 5. titled Falls, Slips and Trips contains a heading styled as "Factors To Consider In Fall Prevention." Under the sub-heading "Falls From Heights" the guideline provides that "The employer should develop safety procedures for each job task that requires a worker to work at a height greater than three metres." Given that it was common ground that the height of the storage trailer floor was nowhere near three metres from the ground, no duty was cast upon Stratford to develop safety procedures for Ms. Rouse's job task of fetching paper crate-liners from that storage trailer. Here too, the maxim expressio unius est exclusio alterius should govern.

(iv) In the result, while there is a lacuna in the legislation and the regulations dealing with the concept of adequacy so far as farming operations are concerned that is a matter for the Legislature to correct.

(v) In short, as particularized, there is no offence known to the law of Ontario that requires an employer in a farming operation to take the reasonable precaution of ensuring that adequate access and/or egress is provided for a storage facility where the employee's task requires her to work at a height that is less than three metres.

The Oral Submissions of the Respondent

31The Ministry submitted that the position taken by the Appellant is without merit. To accede to it would neuter the Occupational Health and Safety Act and produce absurd consequences. The act is remedial in nature. It is designed to protect workers even from their own momentary negligence or recklessness. It should be interpreted liberally in that light and to achieve that end. (See Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at [6] and [27])

Reasons for Judgment

32The appeal is dismissed. Although the appellant submitted at trial that its actions fell squarely within the prosecutor's dictionary definition of "adequate", viz "Sufficient, satisfactory, often with the implication of being barely so" I disagree. In my view His Worship Justice of the Peace D. MacDonald was correct in his judgment. While the set of steps may once have worked well and may once have been adequate to their purpose that was no longer the case after the trailer had been moved. The evidence was that in its earlier position the tires of the trailer were deflated and the trailer had sunk somewhat into the ground. As a result the height of the rise between the top step of the set of steps and the bed of the trailer was less than the height of that rise in the trailer's current position.

33When the trailer was moved to the location where the employee slipped and fell the same set of steps was used without any modification to them or to the storage trailer. As a result, the height of the rise from the top of the set of steps to the floor of the trailer was 24 inches. In my view His Worship Justice of the Peace D. MacDonald was correct to find that the appellant failed to take every precaution reasonable in the circumstances for the protection of a worker. The employer continued to employ and provide the same set of steps to its employees for their use to get into and come out of the trailer despite those steps being too low and inadequate for that purpose, once the trailer's location had changed. A gap of two feet between rungs of a ladder or a rise of two feet between the treads of a set of sets is, in my view, self-evidently unsafe. Likewise, a gap of two feet between the top of a set of steps and the platform those steps are intended to give access to is equally self-evidently unsafe and inadequate to the purpose.

34At paragraph [15] I have précised in bulleted form other submissions made by the appellant. They are all beside the point which is that the employer is charged with the responsibility to take every precaution reasonable in the circumstances for the protection of a worker. As a result, the various pleas made at [15] do not speak to nor do they exculpate the employer from its failure to take every precaution reasonable in the circumstances for the protection of a worker. None of these pleas demonstrate due diligence on the part of the employer on the balance of probabilities. None of these pleas demonstrate that the employer took every precaution reasonable in the circumstance for the protection of a worker.

35In his reasons for judgment Justice of the Peace D. MacDonald reviewed the positions taken by parties. That review included the Crown's submission that he could refer to dictionary definitions of the works "adequate""access" and "egress". In addition he also observed that "the" definition for the word "adequate" could be found in O. Reg. 213/91 of the Occupational Health and Safety Act "regarding construction projects".

36The dictionary definition of "adequate" submitted by the employer and accepted by the Crown was "sufficient, satisfactory, often with the implication of being barely so". That definition is less stringent than the construction industry's O. Reg. 213/91 and the appellant complains, inter alia, that the employer was therefore held to a higher standard than the one cast upon it by s. 25(2)(h) when that provision is interpreted using the dictionary definition of "adequate". In fact, however, that is not what Justice of the Peace D. Macdonald did. His actual reasons for judgment, (as opposed to reviewing the submissions and cases provided to him by the parties,) are short and to the point, commencing at page 117 line 24 of the transcript.

37He found that the Crown has met the burden of proving all of the essential elements of the offence beyond a reasonable doubt. He found, as the Crown had submitted, that the use of this device – a set of moveable steps which was 24 inches lower than the floor of the trailer to be accessed using the device – was "an accident waiting to happen". He found that had Ministry officials been aware of this situation before the slip and fall it would have determined that the use of that set of steps with that trailer in that position would have been a contravention of the s. 25(2)(h). Finally, he found that the employer failed to take the reasonable precaution of ensuring that adequate access and/or egress was provided for the transport storage trailer. He found, in effect, that the employer did not exercise due diligence. As a result, he found the employer guilty of the offence charged.

38In my view, on the evidence adduced, he was correct in that finding. S. 1 of the Farming Operations regulation O. Reg. 414/05 provides that the Occupational Health and Safety Act, applies to farming operations and nothing in that regulation limits the application of s. 25(2)(h) of the Act. Stratford's reliance on the Farming Guidelines is misplaced. Those guidelines specifically advise and warn that they "do not replace the laws that are in place."

39In my view Stratford's submission is an unreasonable one that leads to an absurd conclusion. I reject it. By supplying its employees with a too short set of steps to use to access the storage trailer, Stratford failed to take every precaution reasonable in those circumstances for the protection of its worker. Every precaution reasonable in the circumstances includes providing equipment that is adequate to the task for which that equipment is required. Stratford's failure was a breach of s. 25(2)(h). The top of the set of steps which Stratford provided was 24 inches below the floor of the trailer, in that trailer's then current location. That two-foot gap made those steps insufficient, unsatisfactory and indeed inadequate for the purpose they were to serve so that the employer did not take every precaution reasonable in the circumstances for the protection of a worker. Moreover, I agree with the implication of the judgment appealed from that the use of those steps in that circumstance was not even barely adequate. An employer shall take every precaution reasonable in the circumstances for the protection of a worker. This employer did not.

40The appeal is dismissed.

Dated at Cayuga, this 30th day of January 2013

J.S. Nadel (O.C.J.)

Footnotes

1In these proceedings this set of steps was often referred to as a "stepladder" because it had flat treads rather than rungs. From the photographs of it, I infer that it was not a collapsible stepladder such as might be used to place or fetch items stored on high shelves. I prefer to refer to it as a set of steps.

2Mulveney v. Minister Human Resources Development Canada, [2007] F.C.J. No. 1133 (Federal Court), per Dawson J. at 16 "...review on the standard of correctness means that there is only one possible answer, review on the standard of patent unreasonableness means that there could have been many appropriate answers, but not the answer reached by the decision-maker. ... [A] patently unreasonable defect [i]s one that leaves no real possibility of doubting that the decision is defective, and ... a decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand."

And see Saint John (City) Pension Board v. New Brunswick(Superintendent of Pensions), [2004] N.B.J. No. 474 (N.B.Q.B.) per Grant J. at 15 The Supreme Court of Canada has set out three standards from which a reviewing court must choose: correctness, reasonableness simpliciter and patent unreasonableness. The standard of review which the Court applies will determine the level of deference which the Court gives to the administrative body's decision. If the standard applied is patent unreasonableness, for example, the Court will give a high degree of deference to the administrative tribunal whereas applying the standard of correctness means the Court is giving little deference to the administrative tribunal. ...

And finally, see Northwest Territories v. Union of Northern Workers, [2001] N.W.T.J. No. 24 (N.W.T.S.C.) per Vertes J. at 12 The standard of "correctness" means that there is no deference shown by the reviewing court. The question is whether the decision is right or wrong. The standard of "patent unreasonableness" demands a high degree of deference. The question then is not whether the tribunal's decision is wrong, but whether there is any rational basis for it. The standard of reasonableness simpliciter is somewhere in between these two. The difference between it and patent unreasonableness lies in the immediacy or obviousness of the defect: as per Canada v. Southam Inc., [1997] 1 S.C.R. 748 (at paras. 56-57). If the defect is apparent on the face of the tribunal's decision, then it is patently unreasonable. But, if it takes some significant searching or testing to find the defect then the decision is unreasonable but not patently so.

3The prosecutor submitted that O. Reg. 213/91 dealing with the construction industry provides that "Adequate" in relation to a procedure, material, device, object or thing [in this case it would be object or thing] means sufficient for both its intended and actual use; and b) sufficient to protect a worker from occupational illness [and] occupational injury.

4Expressio unius est exclusio alterius means the expression of one thing is the exclusion of another. Alternatively, it may be translated to mean that when one or more things of a class are expressly mentioned others of the same class are excluded.

5See footnote 3 above for that definition.

6Notwithstanding, Mr. Smitheman speculated that the answer may lie in the fact that many farming operations are unique or idiosyncratic endeavours so that it would be difficult if not impossible to promulgate regulations broadly enough to apply to these unique endeavours while still maintaining any useful content.