Court File and Parties

Court of Appeal for Ontario Date: 20231205 Docket: COA-23-OM-0225

Favreau J.A. (Motion Judge)

Between:

His Majesty the King in Right of Ontario (Ministry of Labour, Immigration, Training and Skills Development) Applicant (Appellant/Moving Party)

And:

Bondfield Construction Company Limited, J.M.R. Electric Ltd. and Toromont Industries Ltd. Respondents (Respondents/Responding Parties)

Counsel:

Wes Wilson and Madeleine Chin-Yee, for the moving party His Majesty the King in Right of Ontario (Ministry of Labour, Immigration, Training and Skills Development) Susan Crawford, for the responding party Toromont Industries Ltd. Ciara Pittam, for the responding party J.M.R. Electric Ltd.

Heard: November 28, 2023 by video conference

Endorsement

[1] The Crown seeks leave to appeal to this court from the judgment of Murphy J. of the Ontario Court of Justice dated July 17, 2023, pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”).

Background

[2] The proceedings arise from an electrical explosion on a construction project. The explosion occurred when a worker on the project was cleaning an energized switchgear cabinet using a paintbrush with a metal band that acted as a conductor. The worker suffered severe burns.

[3] The respondent Toromont Industries Ltd. (“Toromont”) was the worker’s employer and a subcontractor to the respondent J.M.R. Electric Ltd. (“J.M.R.”). Toromont and J.M.R. were charged with various offences under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

[4] The procedural background to this matter is fairly complex and involves several prior court proceedings, including a prior appeal to this court.

[5] Justice of the Peace Ryan-Brode (the “trial justice”), who conducted the original trial, found J.M.R. and Toromont guilty on several charges. As part of that decision, the trial justice found that the respondents’ due diligence defences failed. Based on her findings of guilt, the trial justice imposed fines on Toromont and J.M.R.

[6] On appeal to the Ontario Court of Justice, Mallot J. allowed the appeal on the basis that the Crown had not made out the actus reus of the offences. Having made this finding, Mallot J. did not deal with the issues of due diligence or penalties.

[7] This court granted leave to appeal from Mallot J.’s judgment and ultimately allowed the appeal in part. The court found that the actus reus was made out on one count against J.M.R. (count 4 under s. 190(4) of O. Reg. 213/91 – failing to disconnect power supply) and two counts against Toromont (count 7, also under s. 190(4), and count 10 under s. 187 – storage of tools close to energized equipment). The court referred the appeal back to the Ontario Court of Justice to deal with the issues of due diligence and penalty that Toromont and J.M.R. had originally raised on appeal but had not been decided by Mallot J.

[8] Murphy J. (the “appeal judge”) heard this second appeal in the Ontario Court of Justice on February 27, 2023. She allowed the appeal and referred the issue of due diligence back to trial. She also reduced the penalty imposed on Toromont on count 7 from $170,000 to $35,000.

Proposed issues if leave is granted

[9] The Crown raises the following proposed grounds of appeal in relation to the issue of due diligence and in relation to the penalty reduction for Toromont:

a. The appeal judge erred in her analysis of the trial justice’s consideration of the due diligence defence; b. The appeal judge misapplied the palpable and overriding error standard in finding that the trial justice made two errors of fact; and c. The appeal judge erred in reducing the penalty for Toromont by misapplying the sentencing principles applicable to regulatory offences.

Test under s. 131 of the POA

[10] Sections 131(1) and (2) of the POA set out the test for determining whether leave to appeal from an appeal judgment of the Ontario Court of Justice to the Court of Appeal should be granted:

131(1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.

(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.

[11] This is a high bar and leave is granted sparingly. No matter how wrong the appeal judgment may be, this court must be satisfied that both criteria are met: R. v. Zakarow, (1990) 74 O.R. (2d) 621 (C.A.), at pp. 625-26; Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, 328 D.L.R. (4th) 343, at paras. 33-36; R. v. Scantlebury, 2016 ONCA 453, 350 O.A.C. 174, at para. 12.

[12] As this court stated in R. v. Rankin, 2007 ONCA 127, 221 O.A.C. 184, at para. 30, “[l]eave under s. 131 is to be granted only if the appeal raises questions of law on which this court’s guidance is essential in the public interest or for the due administration of justice.”

Analysis

[13] I find that the issues on which the Crown seeks leave to appeal do not meet the high bar under s. 131 of the POA. None of the alleged errors raise issues of statutory interpretation or require this court to clarify or address general legal principles. On the contrary, all the alleged errors are confined to a claim that the appeal judge misapplied well-established principles of law.

[14] Below, I briefly address each of these alleged errors in the order in which they are listed above:

a. Alleged errors in the due diligence analysis

[15] The Crown argues that the appeal judge made three errors in her analysis of the trial justice’s approach to the due diligence defences. I am not persuaded that any of these alleged errors warrant this court’s intervention.

i. Alleged error in stating legal test for due diligence

[16] First, the Crown argues that the appeal judged erred in finding that it was a legal error for the trial judge not to have considered the due diligence defence separately as it applied to each charge. In making this argument, the Crown relies on the following statement in the appeal judge’s reasons:

The trial Justice of the Peace was required to consider the defence of due diligence regarding each Appellant relating to each of them taking all reasonable steps to avoid committing a particular offence. Instead, she reviewed all three offences for which she made findings of guilt for Toromont and both offences for which she made findings of guilt for J.M.R., and then applied the due diligence defence to the entirety of the offences. This amounts to an error of law. [Emphasis in original.]

[17] I agree that this may have been an overstatement of the law. There is no requirement that the defence of due diligence be considered in a separate section in relation to each offence. But, as a general proposition, and as conceded by the Crown, the appeal judge is correct in suggesting that a due diligence defence must be related to each separate charge. As held by this court in Ontario v. Brampton Brick Ltd., 189 O.A.C. 44 (C.A.), para. 28, citing R. v. Kurtzman, (1991), 4 O.R. (3d) 417 (C.A.), “[t]he employer must show that it acted reasonably with regard to the prohibited act alleged in the particulars and not some broader notion of acting reasonably”: see also R. v. Raham, 2010 ONCA 206, 99 O.R. (3d) 241, at para. 48. This is consistent with the broader principle, as explained in Rankin, at para. 34, that “[g]uilt or innocence [has] to be decided on a count-by-count basis”. While there may be common facts and considerations relevant to a defence of due diligence on multiple counts, a finding that a due diligence defence is made out in relation to one charge is not sufficient to find that a due diligence defence is made out on related charges. In this case, the trial justice considered the due diligence defences for all charges against each defendant without distinguishing what findings related to what charges, and it was open to the appeal judge to find that this was an error.

[18] In addition, it is clear that this is not an issue that requires further consideration by this court. The legal principles at issue have already been addressed by this court. The issue raised by the Crown relates to the appeal judge’s application of these principles and does not require guidance from this court.

ii. Alleged procedural fairness issue

[19] Second, the Crown argues that it did not have an opportunity to address the appeal judge’s finding that the trial justice made an error in her approach to the issue of due diligence, and that this was a breach of natural justice.

[20] The respondents have both pointed to statements in their written and oral closing submissions that make clear that the issue of whether it was appropriate for the trial justice to deal with due diligence defences cumulatively or separately for each charge was raised at the appeal hearing.

[21] More importantly, whether there was a breach of natural justice in this case does not raise an issue of such general importance that it warrants this court’s intervention.

iii. Alleged errors in appellate role

[22] Third, the Crown argues that the appeal judge misunderstood her appellate role. Specifically, the Crown argues that, once the appeal judge found that the trial justice erred in her approach to the due diligence defences, she erred in considering whether the evidentiary findings made by the trial justice nevertheless allowed for a finding that the due diligence defence was not made out on counts 4, 7 and 10.

[23] I agree that there may be some confusion in the appeal judge’s approach to the evidence. However, ultimately, she found that she could not decide the issue of due diligence based on the findings of the trial justice. This was open to her and certainly does not raise issues that warrant further guidance from this court.

b. Alleged errors in application of palpable and overriding error standard of review

[24] The Crown points to two instances where it claims that the appeal judge erred in her application of the palpable and overriding error standard. They involve a finding by the trial justice that the worker who was injured found schematic drawings of the work space confusing and a reference by the trial judge to “oily rags” rather than rags soaked in alcohol. The Crown argues that the appeal judge erred in finding that these were erroneous findings of fact and in finding that they were palpable and overriding errors. In making this argument, the Crown submits that the appeal judge misapplied the palpable and overriding error standard.

[25] Again, this issue does not require guidance from this court. The palpable and overriding error standard of review is well-established. Any errors the appeal judge may have made relate to the application of the standard.

c. Alleged errors in reducing Toromont’s penalty

[26] The Crown argues that the appeal judge made two errors in principle in reducing the penalty imposed on Toromont in relation to count 7. First, the Crown claims that the appeal judge improperly found that the trial justice should have considered the scope of Toromont’s work on the project rather than the size of the company. Second, the Crown submits that she erred in finding that the trial justice erred in failing to consider steps Toromont took to remedy the situation in the future.

[27] In making these arguments, the Crown points out that the appeal judge erred in not giving sufficient deference to the trial justice and in failing to make deterrence the prime consideration.

[28] Again, there may be merit to the Crown’s position on these issues. However, the principles for imposing penalties in the context of regulatory offences are well-established. At most, the concerns raised by the Crown relate to the application of those principles. In the circumstances, I see no basis for this court to grant leave on the issue.

Conclusion

[29] The motion is dismissed.

[30] In its factum, J.M.R. had requested costs of this motion. During argument, counsel for J.M.R. conceded that the costs would not normally be awarded on a motion for leave under the POA: R. v. Rankin, (2007) 2007 ONCA 426, 86 O.R. (3d) 399 (C.A.) at paras. 3-5; R. v. Felderhof, (2003), 68 O.R. (3d) 481 (C.A.), at para. 100. I see no basis for awarding costs in this case.

“L. Favreau J.A.”