Court of Appeal for Ontario
Date: December 20, 2017 Docket: C61897
Judges: Pardu, Huscroft and Fairburn JJ.A.
Parties
Between
Her Majesty the Queen in Right of Ontario (Ministry of Labour)
Appellant
and
Quinton Steel (Wellington) Limited
Respondent
Counsel
Wes Wilson, for the appellant
Jeremy Warning, for the respondent
Hearing
Heard: September 19, 2017
Appeal
On appeal from the decision of Justice Norman S. Douglas of the Ontario Court of Justice, dated November 5, 2015, upholding the acquittal entered on December 17, 2014 by His Worship Justice of the Peace Thomas A. Stinson.
Decision
Huscroft J.A.:
Overview
[1] Martin Vryenhoek died when he fell from a temporary welding platform while working at the factory of his employer, the respondent Quinton Steel. Quinton Steel was charged under s. 25(2)(a) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA") with failing to inform, instruct and supervise a worker to protect the health or safety of the worker, and under s. 25(2)(h) with failing to take "every precaution reasonable in the circumstances for the protection of a worker".
[2] Both charges were dismissed following trial before a justice of the peace. The Crown did not appeal dismissal of the charge under s. 25(2)(a). The Crown appealed dismissal of the count under s. 25(2)(h), but the appeal was dismissed by a summary appeal conviction judge. Leave to appeal to this court was granted by Feldman J.A.
[3] The Crown submits that the trial justice erred in law by failing to adjudicate the s. 25(2)(h) charge as laid. In particular, the Crown says that the trial justice did not make the findings of fact necessary to determine whether it was reasonable to require that guardrails be installed on the platform Vryenhoek used while welding. The respondent submits that the trial justice and appeal judge properly adjudicated the charge and that the Crown is attempting to use s. 25(2)(h) to establish a stricter standard governing the hazard of falling than the regulations require for working at height.
[4] As I will explain, the decisions below are based on a misunderstanding of the interaction between the OHSA and its regulations. I would allow the Crown's appeal and order a new trial.
Background
[5] The facts in this matter are not in dispute.
[6] Quinton Steel operates a custom steel fabrication business, which involves the assembly of large steel components for industrial applications. Welding is a considerable part of its work. Quinton Steel's facility is an industrial establishment as defined in the OHSA and, accordingly, the Industrial Establishments, R.R.O. 1990, Reg. 851, regulation under the OHSA (the "Industrial Establishments Regulation") applies to it.
[7] Martin Vryenhoek was a finishing metal welder at Quinton Steel. On the day of the accident, he was involved in fabricating a large piece of steel equipment called a "slide". Platforms were required in order for him to reach the height required to do the welding. In accordance with longstanding practice at Quinton Steel – some 17 years – a temporary platform was set up for Vryenhoek to use. The platform consisted of two eight-foot planks laid side by side on steel A-frame end pieces. The width of the platform was 19.5 inches. The platform was set up at a height of 6 feet, 6 inches above the ground. It did not have guardrails and no fall arrest equipment was utilized.
[8] Vryenhoek was wearing a welding helmet that covered his face. It had "speed glass", which was clear and allowed forward vision, but became opaque once welding began in order to provide eye protection. He had a full view of his surroundings only when the helmet was lifted from his face.
[9] Vryenhoek was completing an eight-foot weld. He would move along the platform by walking sideways, slowly, and would know that he had reached the end of the platform only by feeling the tip of the A-frame with his foot. Some employees would weld temporary bumpers or guards to the piece they were welding in order to alert them to their position at the end of the platform and serve as a protective device. However, whether and how bumpers were used was a matter of an individual welder's discretion.
[10] Quinton Steel did not require the use of bumpers and did not require the use of fall protection for platforms under nine feet in height. Following the accident, it implemented a rule requiring guardrails on three sides of any work surface over two feet high. A Ministry of Labour inspector subsequently made an order under s. 13 of the Industrial Establishments Regulation requiring this practice.
The Decisions Below
(1) The Justice of the Peace
[11] The charge under s. 25(2)(h) was particularized on consent at the commencement of the trial to allege that Quinton Steel "failed to take the reasonable precaution of installing guardrails at the open sides of a raised wood platform". The trial justice made the following findings:
Vryenhoek was not required to wear fall protection equipment under s. 85 of the Industrial Establishments Regulation because he was working at a height of less than three metres.
Construction Projects, O. Reg. 213/91 (the "Construction Projects Regulation"), another regulation under the OHSA, requires fall protection for work at three metres or more in height, and guardrails if a worker is exposed to a potential fall of 2.4 metres or more, but that regulation did not apply to the work at Quinton Steel.
Section 13(1)(b)(i) of the Industrial Establishments Regulation requires a guardrail to be in place at the open side of a "raised floor, mezzanine, balcony, gallery, landing, platform, walkway, stile, ramp, or other surface", regardless of height. The respondent did not face charges under s. 13.
[12] The trial justice found that the requirements of ss. 13 and 85 of the Industrial Establishments Regulation were contradictory and difficult to reconcile. He considered that if s. 13 requires guardrails to be installed on any raised surface, no matter how high, "its scope would be breathtaking". The trial justice noted that this interpretation would be inconsistent with the Construction Projects Regulation, which requires guardrails only for work at a height of 2.4 metres or more. Why, he asked, would there be a need for fall protection equipment in s. 85 of the Industrial Establishments Regulation if guardrails were required regardless of height?
[13] The trial justice reconciled what he considered to be the "obvious contradictions" on guardrail requirements by limiting the scope of the guardrail requirement in s. 13 of the Industrial Establishments Regulation, so that it applies to fixtures – things attached to the premises of the building or factory itself – but not to chattels. Applying this interpretation, he found that the guardrail requirement in s. 13 did not apply to the unattached A-frame platform from which Vryenhoek fell.
[14] The trial justice concluded that s. 85 of the Industrial Establishments Regulation is a "complete and discrete code with respect to the requirements for protecting workers from falls in a case such as this" – that is, a fall from a chattel rather than a workplace fixture governed by s. 13. It was not appropriate for the Crown to use the general duty clause in s. 25(2)(h) of the OHSA to extend the respondent's duty beyond what was specifically outlined in s. 85 of the regulation. Thus, guardrails on the A-frame Vryenhoek used were not required as a matter of law. The trial justice noted that no one was aware of any prior incidents of falls from A-frame platforms and that the system had not been criticized by the Ministry of Labour in prior inspections.
[15] Finally, the trial justice reviewed photographic evidence and found that there was a "form of guardrail" when the accident occurred, and that it was not unreasonable to conclude that Vryenhoek may have placed it there. Therefore, he concluded, the Crown had failed to prove the particulars of the charge under s. 25(2)(h) in any event.
(2) The Summary Conviction Appeal Judge
[16] The Crown appealed dismissal of the charge under s. 25(2)(h) on two bases. First, the Crown argued that the trial justice failed to address whether it was reasonable for Quinton Steel to have taken the precaution of using guardrails in the circumstances. Second, the Crown argued that the trial justice misapprehended the evidence by identifying a guardrail in one of the photographs.
[17] The appeal judge concluded that the trial justice was alive to the fact that Vryenhoek was a welder operating with limited visibility, and that the trial justice had adjudicated the charge as laid. He concluded, further, that although the trial justice misapprehended the evidence concerning the existence of a guardrail, the misapprehension was not the basis of Quinton Steel's acquittal. The appeal judge dismissed the appeal, finding there was no error of law and the verdict was not unreasonable.
Discussion
[18] I begin by revisiting the court's approach to the interpretation of public welfare legislation. I then consider the nature and purpose of the OHSA and the interaction of the Act and the regulations, before addressing the issues raised on appeal.
(1) Interpreting Public Welfare Legislation
[19] The starting point is that the OHSA is public welfare legislation – legislation designed specifically to protect workers – and this court has consistently instructed that it must be interpreted generously, not narrowly or technically, in order to allow it to achieve this purpose: see R. v. Timminco Ltd., 54 O.R. (3d) 21 (C.A.), at p. 27; R. v. The Corporation of the City of Hamilton, 58 O.R. (3d) 37 (C.A.), at para. 16; R. v. Dofasco Inc., 2007 ONCA 769, 87 O.R. (3d) 161, at para. 13. As Sharpe J.A. put it in City of Hamilton, at para. 16:
The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided.
[20] The respondent acknowledges the need for a generous interpretation of the OHSA but submits that there are limits; the OHSA and the regulations cannot be interpreted to apply to every possible workplace scenario. The respondent cites this court's decisions in Blue Mountain Resorts Ltd. v. denBok, 2013 ONCA 75, 359 D.L.R. (4th) 276, at para. 26 and Ontario (Ministry of Labour) v. Sheehan's Truck Centre Inc., 2011 ONCA 645, 107 O.R. (3d) 763, at paras. 29-30 in support of this proposition.
[21] I agree that there are limits to the permissible interpretation of public welfare statutes, and to the OHSA in particular; the intention of the legislature remains the touchstone. But neither Blue Mountain Resorts nor Sheehan's Truck provides support for a narrow interpretation of s. 25(2)(h). The nature and purpose of that section requires a broad interpretation, as I will explain.
(2) The OHSA
[22] The OHSA establishes duties that are particularized by workplace-specific regulations. Separate regulations govern construction, mining, and industrial workplaces. As noted above, the respondent's factory is an industrial establishment as defined in the OHSA and the Industrial Establishments Regulation applies to it.
[23] Section 25(1) of the OHSA refers specifically to the regulations and imposes a duty on employers to ensure that the measures and procedures prescribed by the regulations are carried out. But s. 25(1) does not exhaust employers' duties under the Act. Section 25(2)(h) provides as follows:
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;
[24] Section 25(2)(h) establishes a duty that this court has described as "even more sweeping" than s. 25(1): R. v. Wyssen, 10 O.R. (3d) 193 (C.A.), at p. 198. It is more sweeping because it does not depend on the existence of a specific regulation prescribing or proscribing particular conduct. Section 25(2)(h) is necessary because, as the Crown submits, the regulations cannot reasonably anticipate and provide for all of the needs and circumstances of the many and varied workplaces across the province.
[25] The OHSA is for the most part a strict liability regime. This means that, for most offences – including s. 25(2)(h) – the Crown is not required to prove mens rea in order to prove an offence. The Crown is required to prove only the actus reus of an offence – to prove, in other words, that the offence occurred – beyond a reasonable doubt. If the Crown succeeds in doing so, an employer can avoid liability only by establishing, on a balance of probabilities, that it acted with due diligence in seeking to avoid the event that occurred: R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, at pp. 1325-1326.
(3) Did the Trial Justice Adjudicate the Charge as Laid?
[26] The respondent was charged with violating s. 25(2)(h) of the OHSA. As noted above, the charge was particularized, as this court required in R. v. Brampton Brick, 189 OAC 44 (C.A.), at p. 52, on consent at the commencement of the trial. The Crown alleged that the respondent "failed to take the reasonable precaution of installing guardrails at the open sides of a raised wood platform".
[27] The Crown was not required to establish a failure to comply with any of the regulations in order to prove that s. 25(2)(h) had been violated. It is common ground for the purposes of this appeal that s. 13 of the Industrial Establishments Regulation, which requires the use of guardrails in particular circumstances, does not apply in this case because it applies only to permanent platforms, not temporary ones. Nor does s. 85 of the same regulation – which prescribes the use of fall protection equipment – apply, because Vryenhoek was not working at a height of three metres or more.
[28] Instead, the Crown was required to prove that the installation of guardrails was a reasonable precaution in the circumstances of this workplace in order to protect a worker and that the respondent failed to install the guardrails. This was the actus reus of the offence. The respondent argued that the Crown did not succeed in proving the actus reus and did not call any evidence or otherwise attempt to establish a due diligence defence.
[29] There is no question that the respondent did not install guardrails on the temporary platform from which Vryenhoek fell. The trial justice's finding to the contrary has no support in the record and was not defended by the respondent. The only question that had to be determined by the trial justice was the first one: was the installation of guardrails a reasonable precaution necessary in the circumstances of this workplace in order to protect Vryenhoek?
[30] The Crown's position, in essence, is that this question was never answered by the trial justice. I agree.
[31] As this court pointed out in Brampton Brick, at para. 18, the surrounding circumstances are an element of the offence under s. 25(2)(h) that must be considered before it can be concluded that a precaution not taken was reasonable. In order to apply s. 25(2)(h), the trial justice had to consider all of the relevant circumstances including the nature of the workplace, the work being performed by Vryenhoek, the equipment he was using, and the manner in which he was performing the work. Vryenhoek was welding while moving from side-to-side across a temporary platform; he was wearing a welding helmet that afforded him only limited sight and could not see the end of the platform from which he fell to his death. The question for the trial justice was whether the installation of guardrails on the A-frame platform was a reasonable precaution in these circumstances.
[32] The trial justice did not answer this question. Instead, he concluded that s. 25(2)(h) of the OHSA was not violated because the respondent had not violated any provision of the regulations, and s. 25(2)(h) could not be used to extend an employer's duties beyond those set out in the regulations.
[33] The appeal judge found that the trial justice adjudicated the charge as laid, describing him as "alive to the fact that this was a welder with limited visibility, working on a platform approximately six and a half feet from the floor." I do not read the trial justice's decision in this way. The focus of the trial justice's reasons was on the relationship between the statutory requirement and the regulations. He concluded that the respondent could not be convicted of violating s. 25(2)(h) because the regulations had not been violated. That conclusion is erroneous, as I will explain.
(4) The Relationship Between the OHSA and the Regulations
[34] The trial justice relied on the regulations under the OHSA to limit the scope of the statutory duty set out in s. 25(2)(h). I set out the salient portions of his reasons, at paras. 75-76:
I conclude, then, as a matter of fact and law, that the provisions of section 13 of the Industrial Establishment Regulation do not apply in this case. I further conclude, as a matter of law, that the provisions of section 85 of the Industrial Establishment Regulation form a complete and discrete code with respect to the requirements for protecting workers from falls in a case such as this, where the worker is standing atop an A-frame and plank system that is a chattel rather than a fixture within the industrial establishment.
I further conclude, therefore, that… it is not appropriate for the Crown to use the general duty clause of section 25 of the OHSA to extend requirements beyond those specifically outlined in section 85 of the Industrial Establishments Regulation, which does govern the situation.
[35] The error here is plain. Section 25(1) of the OHSA requires employers to ensure that the measures and procedures prescribed by the regulations are carried out. But employers are required to comply with s. 25(2)(h) as well as s. 25(1), and the application of s. 25(2)(h) does not depend on compliance with any of the regulations.
[36] The respondent's submissions in this court reflect a similar confusion about the relationship between the OHSA and the regulations. The respondent submits:
The normative standards, setting the reasonable precautions to address the hazard of falling, have been set out by the Legislature in the applicable regulations referred to above. The general duty clause cannot be used to modify these standards. To do so introduces uncertainty and would improperly permit regulated parties to be held to stricter standards than the Legislature has prescribed.
[37] This submission proceeds from a fundamental error. The Legislature did not prescribe the Industrial Establishment Regulation. The regulation is subordinate legislation that was promulgated by the executive branch of government pursuant to authority set out in s. 70 of the OHSA.
[38] Regulation-making authority under s. 70 does not extend to the making of regulations that purport to vary or limit the operation of employers' duties under s. 25(2)(h) of the OHSA. It is an inversion of the normal relationship between the Act and its regulations – primary and secondary legislation – to give legislative duties a narrow interpretation so as not to interfere with regulations made under the Act.
[39] This error runs throughout the respondent's argument. The respondent describes the Crown as seeking to use s. 25(2)(h) to modify objective standards established in the regulations by the legislature and submits, in essence, that the regulations have "occupied the field" – exhaustively determined the circumstances in which guardrails and fall protection are required. In other words, once regulations were made governing falls in the workplace, the general duty set out in s. 25(2)(h) had no role to play. As the respondent puts it: "[t]he Legislature has, therefore, defined the acceptable level of risk for workplace falls. If the government position is now that working at a height of 6.5 feet represents an unacceptable risk, that should be addressed through the legislative process rather than through the hindsight application of the general duty clause."
[40] This submission must be rejected.
[41] First, regulations cannot "occupy the field" by displacing statutory authority. Section 25(2)(h) specifically requires that employers take every precaution reasonable in the circumstances for the protection of a worker. As I have said, that duty is not varied or limited by the existence of specific regulations.
[42] Second, the effect of the trial justice's interpretation is to limit the protection afforded workers in industrial establishments working on temporary structures: they are entitled to receive fall-protection equipment only, and then only if they are working at a height of more than three metres. This interpretation seriously undermines the purpose of the OHSA – the protection of the health and safety of workers – and is antithetical to the generous interpretation that the law requires.
[43] The need for a generous interpretive approach to s. 25(2)(h) does not lead to intolerable uncertainty for employers, as the respondent submits. To be sure, certainty is an important aspect of the rule of law; parties should be able to ascertain what the law requires in order that they can arrange their affairs in compliance with its demands: see Lon Fuller, The Morality of Law (New Haven: Yale University Press, rev'd edn. 1969) at pp. 63-64. This is particularly so in the context of the criminal law, and is reflected in the constitutional prohibition of retrospective criminal liability under s. 11(g) of the Charter: see R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 23-26.
[44] But prescriptive certainty is not required in the context of regulatory offences such as s. 25(2)(h). That section establishes a standard, rather than a rule, the requirements of which are tailored to suit particular circumstances. Employers must take every precaution reasonable in the circumstances in order to protect workers. Reasonableness is a well-known legal concept that is interpreted and applied in a wide variety of legal contexts. Its use in s. 25(2)(h) does not give rise to intolerable uncertainty.
[45] It may not be possible for all risk to be eliminated from a workplace, as this court noted in Sheehan Truck, at para. 30, but it does not follow that employers need do only as little as is specifically prescribed in the regulations. There may be cases in which more is required – in which additional safety precautions tailored to fit the distinctive nature of a workplace are reasonably required by s. 25(2)(h) in order to protect workers. The trial justice's erroneous conception of the relationship between s. 25(2)(h) and the regulations resulted in his failure to adjudicate the s. 25(2)(h) charge as laid.
Conclusion
[46] I would allow the appeal and order a new trial before a different Justice of the Peace.
Released: December 20, 2017 ("G.P.")
"Grant Huscroft J.A."
"I agree. G. Pardu J.A."
"I agree. Fairburn J.A."