Ontario (Workplace Safety and Insurance Board) v. Hamilton Health Sciences Corp.
Her Majesty the Queen (Workplace Safety and Insurance Board) v. Hamilton Health Sciences Corporation [Indexed as: Ontario (Workplace Safety and Insurance Board) v. Hamilton Health Sciences Corp.]
51 O.R. (3d) 83
[2000] O.J. No. 3929
Docket No. C33819
Court of Appeal for Ontario
Rosenberg, Feldman and Sharpe JJ.A.
October 25, 2000
Employment -- Occupational health and safety -- Offences -- Employer's failure to notify Workplace Safety and Insurance Board within three days of learning of reportable accident constituting continuing offence under Workplace Safety and Insurance Act -- Violation continuing until incident reported to board -- Charge laid within six months of reporting of incident -- Charge laid within six months of commission of offence as required by s. 76(1) of Provincial Offences Act -- Provincial Offences Act, R.S.O. 1990, c. P.33, s. 76(1) -- Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A.
Limitations -- Provincial offences -- Employer's failure to notify Workplace Safety and Insurance Board within three days of learning of reportable accident constituting continuing offence under Workplace Safety and Insurance Act -- Violation continuing until incident reported to board -- Charge laid within six months of reporting of incident -- Charge laid within six months of commission of offence as required by s. 76(1) of Provincial Offences Act -- Provincial Offences Act, R.S.O. 1990, c. P.33, s. 76(1) -- Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A.
The employer learned on April 28, 1998 that an employee had been injured on the job on March 17, 1998. The employer did not give notice of the accident to the Workplace Safety and Insurance Board until June 24, 1998. The employer was charged on December 3, 1998 with failing to notify the Board within three days after learning of the accident, contrary to s. 21(1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A ("the Act"), thereby committing an offence under s. 152(3) of the Act. The Justice of the Peace quashed the information on the ground that it was invalid as the charge was not laid within six months of the commission of the offence as required by s. 76(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33. An application by the prosecutor for certiorari to quash that decision and for mandamus to require the Justice of the Peace to exercise her jurisdiction was dismissed. The prosecutor appealed.
Held, the appeal should be allowed.
The interpretation of s. 21(1) of the Act 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 has provided a reasonable (three-day) grace period for the employer to comply with the duty. The offence continues until the employer complies with its reporting obligation. Any other 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 injury 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 does not encourage compliance and could defeat the statutory scheme.
APPEAL from a judgment dismissing an application for certiorari and mandamus.
Cases referred to R. v. Industrial Appeals Court; Ex parte Barelli's Bakeries Pty. Ltd., [1965] V.R. 615 (S.C.); R. v. Rutherford (1990), 1990 CanLII 13293 (ON CA), 75 C.R. (3d) 230, 38 O.A.C. 41 (C.A.); R. v. Sakellis (1969), 1969 CanLII 385 (ON CA), [1970] 1 O.R. 720, 9 D.L.R. (3d) 342, [1970] C.T.C. 342, 70 D.T.C. 6202, [1970] 2 C.C.C. 377 (C.A.); Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193, 98 C.L.L.C. 210-006, 36 O.R. (3d) 418n, 221 N.R. 241, 33 C.C.E.L. (2d) 173, 50 C.B.R. (3d) 163 Statutes referred to Interpretation Act, R.S.O. 1990, c. I.11, s. 10 Provincial Offences Act, R.S.O. 1990, c. P.33, s. 76 Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A, ss. 21, 22, 37(1), 82(4), 83(3), 152(3), 158 Regulations referred to O. Reg. 175/98, s. 15
Thomas J. Lockwood, Q.C., for appellant. Robert Rogers, Alexandra Clark and Andrew Taylor, amicus curiae. Christine Tier, for intervenor, Attorney General of Ontario.
The judgment of the court was delivered by
[1] ROSENBERG J.A.: -- The narrow issue in this appeal is whether an employer's failure to notify the Workplace Safety and Insurance Board within three days of learning of a reportable accident is a continuing offence under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A. If it is, the information charging the employer with failing to comply with the reporting obligation was laid within the six- month time limit. If it is not a continuing offence, as held by the trial court and by Cavarzan J., the information was not laid in time and was properly quashed. In my view, this is a continuing offence and the prosecutor's appeal should be allowed.
The Facts
[2] On March 17, 1998, an employee of the Hamilton Health Sciences Corporation suffered an injury on the job. The employee received medical treatment for the injury on April 28, 1998. The employer learned of the accident necessitating health care on April 28, 1998. It did not give notice of the accident to the Workplace Safety and Insurance Board until June 24, 1998. The information charging the employer with an offence under the Workplace Safety and Insurance Act, 1997 was sworn on December 3, 1998. The information reads in part as follows:
between the 20th day of March, 1998 and the 24th day of June 1998 at the City of Hamilton in the Central West Region and elsewhere in the Province of Ontario failed to notify the Workplace Safety and Insurance Board within three days after learning of an accident to their worker, Mary Beth Wallace, which necessitated health care or resulted in Mary Beth Wallace not being able to earn full wages, contrary to Section 21(1) of the Workplace Safety and Insurance Act and did thereby commit an offence pursuant to Section 152(3) of the Workplace Safety and Insurance Act.
[3] The employer argued before Justice of the Peace Park that the information was invalid because the charge had not been laid within six months of the commission of the offence. The Justice of the Peace accepted this argument and quashed the information. An application by the prosecutor for certiorari to quash this decision and for mandamus to require the Justice of the Peace to exercise her jurisdiction was dismissed by Cavarzan J. The prosecutor has now appealed to this court.
[4] Prior to the hearing of the appeal, the respondent/ employer Hamilton Health Sciences Corporation reached a settlement with the prosecutor and thus the respondent's interests are not affected by the outcome of the appeal. To ensure that the issue was properly argued, this court appointed amicus curiae to provide submissions in support of the decision of Cavarzan J. The Attorney General of Ontario was also permitted to intervene in the appeal.
[5] The relevant statutory provisions are the following:
Workplace Safety and Insurance Act, 1997
21(1) An employer shall notify the Board within three days after learning of an accident to a worker employed by him, her or it if the accident necessitates health care or results in the worker not being able to earn full wages.
(2) The notice must be on a form approved by the Board and the employer shall give the Board such other information as the Board may require from time to time in connection with the accident.
(3) An employer who fails to comply with this section shall pay the prescribed amount to the Board. This payment is in addition to any penalty imposed by a court for an offence under subsection 152(3).
(4) The employer shall give a copy of the notice to the worker at the time the notice is given to the Board.
152(3) An employer who fails to comply with section 21 is guilty of an offence.
158(1) A person who is convicted of an offence is liable to the following penalty:
If the person is an individual, he or she is liable to a fine not exceeding $25,000 or to imprisonment not exceeding six months or to both.
If the person is not an individual, the person is liable to a fine not exceeding $100,000.
(2) Any fine paid as a penalty for a conviction under this Act shall be paid to the Board and shall form part of the insurance fund.
Provincial Offences Act, R.S.O. 1990, c. P.33
76.(1) A proceeding shall not be commenced after the expiration of any limitation period prescribed by or under any Act for the offence or, where no limitation period is prescribed, after six months after the date on which the offence was, or is alleged to have been, committed.
(Emphasis added)
[6] The prescribed amount (an administrative penalty) referred to in s. 21(3) is established by s. 15 of O. Reg. 175/ 98 and is an amount determined by the Workplace Safety and Insurance Board that is not more than $250.
[7] The positions of the parties may be simply stated. The appellant submits that the offence is a continuing one and that the violation of s. 21(1) continued until the employer reported the incident to the Board on June 24, 1998. Accordingly, the information was sworn within the six-month limitation period. Counsel for the Attorney General of Ontario supports this position and has drawn the court's attention to a large number of provincial statutes that create similar offences.
[8] The amicus curiae submits that the offence was completed on the day after the expiration of the three days set out in s. 21(1). Since the employer learned on April 28, 1998 that the injury was reportable, the offence was complete in early May. Thus, the six-month limitation period prescribed by the Provincial Offences Act expired in early November, a month before the information was sworn. The courts below accepted this argument.
[9] In effect, the appellant and the Attorney General argue that the essential element of the offence is the failure to report. Amicus curiae puts the emphasis on timely reporting and argues that the essential element of the offence is the failure to report within three days.
Analysis
[10] The starting point for the interpretation of the statutory provisions involved in this appeal is s. 10 of the Interpretation Act, R.S.O. 1990, c. I.11:
- Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.
(Emphasis added)
[11] By its terms, s. 10 applies to penal statutes. Iacobucci J. considered the application of s. 10 in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193. He held that s. 10 directs the court to not only consider the plain meaning of the specific provisions in question, but the scheme of the Act as a whole, its object and the intention of the legislature.
[12] The legislature has set out the purposes of the Workplace Safety and Insurance Act, 1997 in the following terms:
The purpose of this Act is to accomplish the following in a financially responsible and accountable manner:
To promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases.
To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease.
To facilitate the re-entry into the labour market of workers and spouses and same-sex partners of deceased workers.
To provide compensation and other benefits to workers and to the survivors of deceased workers.
[13] Thus, the purposes of this Act include the return of injured workers to work and the provision of compensation and other benefits. The reporting provision in s. 21 is central to this scheme. The Board can only provide the compensation, benefits, vocational training and rehabilitation if it learns of the injury. The statute is constructed to place the primary reporting obligation upon the employer. While the worker (s. 22) and health care professionals (s. 37(1)) also have reporting obligations, their failure to report is not an offence.
[14] 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 provided 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 other 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 injury 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. [See * at end of document] An interpretation that would lead to such a result should be avoided if possible. As Iacobucci J. held in Rizzo at p. 43 [S.C.R.]:
It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).
[15] In my view, case law on the question of continuing offences supports the position of the appellant. In R. v. Rutherford (1990), 1990 CanLII 13293 (ON CA), 75 C.R. (3d) 230 at p. 235, 38 O.A.C. 41 (C.A.), Grange J.A. adopted the following definition from R. v. Industrial Appeals Court; Ex parte Barelli's Bakeries Pty. Ltd., [1965] V.R. 615 (S.C.) at p. 620:
A continuous or continuing offence is a concept well known in the criminal law and is often 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 obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed.
[16] In Barelli's Bakeries, the court went on to hold that if the offence is a continuing one, the right to lay an information is not barred if the breach (the failure to perform the duty) has continued up to the day the information was laid or if the breach was cured before the information was laid, as in this case, the time counts from the day the duty was performed. It is helpful to consider the legislation in issue in that case. The charge was laid under legislation that provided as follows:
Where any employer employs any person on work for which the lowest prices or rates have been fixed in a determination, such employer shall be liable to pay and shall pay in full in money without any deduction whatever to such person the price or rate so determined.
[17] The "determination" fixed the time for payment. The Supreme Court of Victoria held that the statutory obligation to pay was not spent if payment was not made at the time fixed by the determination. Thus, while only one offence was committed, that offence continued until the obligation was performed. In my view, the same result should follow in this case.
[18] The decision of this court in R. v. Sakellis (1969), 1969 CanLII 385 (ON CA), [1970] 1 O.R. 720, 9 D.L.R. (3d) 342 is also of assistance. In that case, an employer was charged with failing to remit employee contributions under the Income Tax Act, R.S.C. 1952, c. 148. Under the legislation, the amounts deducted were to be paid to the Receiver General on or before the fifteenth day of the following month. While the case turned on the wording of the information rather than any limitation period, the court's interpretation of the section is relevant to this appeal. At p. 722 [O.R.], McGillivray J.A. held as follows:
The offence could not be committed within that 15 days. It can only be established after this period has elapsed. It then exists and must continue to exist until payment is made.
(Emphasis added)
[19] That, in my view, is the situation with s. 21(1). The offence cannot be established until the expiration of the three-day grace period. However, thereafter the obligation to report and the offence continue until the employer reports to the Board. The Board then has six months to lay the information in accordance with s. 76 of the Provincial Offences Act.
Disposition
[20] Accordingly, I would allow the appeal, grant the application for certiorari and quash the decision of Justice of the Peace Park. In light of the settlement reached by the appellant and respondent it is unnecessary to grant the application for mandamus.
Appeal allowed.
Notes
- The employer may also have an interest in failing to report accidents because in setting the premium rate the Board may take into account the frequency of work injuries and accident costs. See ss. 82(4) and 83(3) of the Act.