Her Majesty the Queen v. Timminco Limited/Timminco Limitée [Indexed as: R. v. Timminco Ltd./Timminco Ltée]

54 O.R. (3d) 21

[2001] O.J. No. 1443

Docket No. C33380

Court of Appeal for Ontario,

Osborne A.C.J.O., Charron and Feldman JJ.A.

April 19, 2001

Employment--Occupational health and safety--Elements of offence--Employer charged with failing to ensure that machine with exposed moving part that may have endangered safety of person was fenced or guarded--Crown not required to establish that employer had knowledge of hazard in question--Employer's lack of knowledge of hazard relevant only in respect of due diligence defence--Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 25(1)(c)--Regulation 854, R.R.O. 1990, s. 185(1).

A crown press operator employed by the defendant died from injuries he sustained in a workplace accident on the defendant's premises. He was found at the back of the press, between a moving index beam carriage and the stationary frame of the press. At the time of the accident, there was no guard or fence to block access to the moving index beam from the back of the press. Press operators were not required to work behind the press while performing any job-related functions. The defendant was charged with failing to ensure that a crown press with an exposed moving part that may have endangered the safety of a person was fenced or guarded, contrary to s. 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 and s. 185(1) of Regulation 854, R.R.O. 1990. The trial judge granted the defendant's motion for a directed verdict of acquittal. The trial judge found that the moving index beam proved to be a danger to the deceased employee, but that there was no evidence to suggest that the defendant knew that the exposed moving index beam presented such a hazard. He therefore found that the actus reus of the offence was not made out. The Crown's appeal was allowed. The appeal judge found that the defendant had sufficient knowledge of the exposed moving part to establish the actus reus of the offence, so that it was unnecessary to consider whether prior knowledge of a hazard was an essential element of the offence charged. The defendant appealed.

Held, the appeal should be dismissed.

Occupational Health and Safety Act offences are, prima facie, strict liability offences. The burden of proof is on the Crown to establish the actus reus of a strict liability regulatory offence, beyond a reasonable doubt. The burden of proving a defence is on the defendant. To impose on the Crown an obligation to prove a mental element of a strict liability offence would impede the adequate enforcement of public welfare legislation and would convert a strict liability offence into a mens rea offence. Where an exposed moving part "may endanger" a worker, the regulation requires that a guard or fence be provided to prevent access to the moving part. The Crown must establish that the exposed moving part may endanger a worker before there can be a conviction. However, there is no requirement that the Crown show that the employer in fact knew of the danger. The foreseeability of a hazard is properly to be considered as part of a due diligence defence. The Crown in this case adduced some evidence with respect to each essential element of the offence charged, that is, that the defendant was the deceased's employer; that the defendant had a "machine" with an exposed moving part that might endanger the safety of any person; and that the exposed moving part was not "fenced or guarded", or constructed in such a way that would provide equivalent protection. Thus, the trial judge should not have directed a verdict of acquittal.

APPEAL from a judgment of Belch J. (1999), 1999 ONSC 36527, 29 C.R. (5th) 152, 48 C.C.E.L. (2d) 22 allowing the Crown's appeal from a directed verdict of acquittal.

R. v. Grant Paving & Materials Ltd., unreported, October 23, 1996, Doc. No. C21385 (Ont. C.A.), consd Other cases referred to Machtinger v. HOJ Industries Ltd., 1992 SCC 102, [1992] 1 S.C.R. 986, 7 O.R. (3d) 480n, 91 D.L.R. (4th) 491, 134 N.R. 386, 40 C.C.E.L. 1, 92 C.L.L.C. 14,022, 11 C.P.C. (3d) 140 (sub nom. Lefebvre v. HOJ); R. v. Jetters Roofing and Wall Cladding Inc. v. Blouse, [1999] O.J. No. 5244; R. v. Charemski, 1998 SCC 819, [1998] 1 S.C.R. 679, 157 D.L.R. (4th) 603, 224 N.R. 120, 123 C.C.C. (3d) 225, 15 C.R. (5th) 1; R. v. Ellis-Don Ltd., 1992 SCC 94, [1992] 1 S.C.R. 840, 7 O.R. (3d) 320n, 92 D.L.R. (4th) 288n, 134 N.R. 236, 8 C.R.R. (2d) 314, 71 C.C.C. (3d) 63, revg (1990), 1990 ONCA 6968, 1 O.R. (3d) 193, 42 O.A.C. 49, 76 D.L.R. (4th) 347, 5 C.R.R. (2d) 263, 34 C.C.E.L. 130, 61 C.C.C. (3d) 423, 2 C.R. (4th) 118 (C.A.); R. v. Lake Ontario Cement Ltd. (1990), 5 C.O.H.S.C. 192 (Ont. Prov. Div.); R. v. Litchfield, 1993 SCC 44, [1993] 4 S.C.R. 333, 14 Alta. L.R. (3d) 1, 86 C.C.C. (3d) 97, 25 C.R. (4th) 137; R. v. Mills, unreported, December 6, 1996 (Ont. Prov. Div.); R. v. Nickel City Transport (Sudbury) Ltd. (1993), 1993 ONCA 8483, 14 O.R. (3d) 115, 104 D.L.R. (4th) 340, 82 C.C.C. (3d) 541, 22 C.R. (4th) 155, 47 M.V.R. (2d) 20 (C.A.); R. v. Peake, [1999] O.J. No. 696; R. v. Rio Algom Ltd. (1988), 1988 ONCA 4702, 66 O.R. (2d) 674, 29 O.A.C. 349, 23 C.C.E.L. 85, 46 C.C.C. (3d) 242 (C.A.); R. v. Sault Ste. Marie (City), 1978 SCC 11, [1978] 2 S.C.R. 1299, 3 C.R. (3d) 30, 21 N.R. 295, 7 C.E.L.R. 53, 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353; R. v. Seeley & Arnill Aggregates Ltd. (1993), 9 C.O.H.S.C. 1 (Ont. Gen. Div.); R. v. Wholesale Travel Group Inc., 1991 SCC 39, [1991] 3 S.C.R. 154, 4 O.R. (3d) 799n, 49 O.A.C. 161, 84 D.L.R. (4th) 161, 130 N.R. 1, 7 C.R.R. (2d) 36, 67 C.C.C. (3d) 193, 38 C.P.R. (3d) 451; United States v. Shephard, 1976 SCC 8, [1977] 2 S.C.R. 1067, 34 C.R.N.S. 207, 9 N.R. 215, 30 C.C.C. (2d) 424, 70 D.L.R. (3d) 136 Statutes referred to Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 25(1)(c) Rules and regulations referred to Mines and Mining Plants Regulation, R.R.O. 1990, Reg. 854, s. 185(1)

Norman Keith, for appellant. Bruce Arnott, for respondent.

The judgment of the court was delivered by

[1] OSBORNE A.C.J.O.:-- The principal issue on this appeal is whether knowledge of an alleged workplace hazard is part of the actus reus of the regulatory offence set out in s. 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 and s. 185(1) of Regulation 854, R.R.O. 1990. On December 17, 1999, MacPherson J.A. granted leave to appeal on this issue and on the further issue of whether this court's unreported judgment in R. v. Grant Paving & Materials Ltd., delivered October 23, 1996, is binding authority requiring the Crown to prove knowledge of the alleged hazard.

I. The Relevant Facts and the History of the Proceedings

[2] The appellant, Timminco Limited ("Timminco") was charged with the offence of failing to ensure that a crown press with an exposed moving part that may have endangered the safety of a person was fenced or guarded, contrary to s. 25(1)(c) of the Occupational Health and Safety Act and s. 185(1) of the Regulation 854.

[3] Timminco operates a plant that processes dolomite and other raw materials to produce magnesium metal and alloys. On June 24, 1996, David Roesler, a crown press operator employed by Timminco, died from injuries he sustained in a workplace accident on Timminco's premises. Roesler was found at the back of the press, between an index beam carriage and the stationary frame of the press. There was no eyewitness to this tragic accident.

[4] At the time of the accident, there was no guard or fence to block access to the moving index beam from the back of the press. Nor was there any requirement by the employer, written or otherwise, that press operators work behind the press while performing any job-related functions, including maintenance of the press. However, the evidence shows that press operators often went behind the press for specific maintenance-related purposes.

[5] A general description of the press in question will help to explain how the accident happened. This description is based on my review of a video tape that was filed as a trial exhibit, and from a detailed description of the press that was provided in the appeal judge's reasons.

[6] In its general appearance, the press is ungainly. The video tape reveals a somewhat cluttered work area surrounding the press, which in normal circumstances operates automatically. Typically, a press operator works alone from a position in front of the press. He starts the press at a control panel located at the front of the press. The press has an "index beam arm" connected to an index beam carriage. As the operator looks at the press, the index beam arm moves in a horizontal direction from left to right. In each motion sequence, the index beam arm travels a distance of about two feet in approximately 2.5 seconds. The index beam carriage is connected to a stationary frame. The purpose of the index beam carriage is to pick up condensers and move them to their required positions; the index beam carriage then returns to pick up another condenser and the process is repeated.

[7] The video tape reveals that two chains located at each end of the press are strung between the press frame and the wall behind the press. The press is located about 10 feet from the wall. A press operator, or other person, would have to pass over or under one of these chains in order to get into the area immediately behind the press. The chains do not appear to present a problem to anyone who wants to gain access to that area.

[8] The evidence at trial showed that rather than rely on maintenance personnel, some operators went behind the press to perform various maintenance-related tasks. This normally took place when the press was not in operation. Some operators also went behind the press to adjust the motor that aligned the condensers. On occasion, they performed this task while the press was in operation and the index beam was moving.

[9] The trial judge found and the Crown accepts that as long as he was positioned in front of a press, a press operator would not be in danger. Thus, the significant point of the concern is the area at the back of the press.

[10] The opening at the back of the press, where Mr. Roesler was found, is rectangular. It is about 26 inches wide and 14 1/2 inches high. The distance from the floor to the bottom of this opening is about 50 inches. Apart from the modest restraints provided by the two chains strung between the press and the wall behind the press, the moving index beam is exposed at the back of the press.

[11] As I have said, Timminco was charged under s. 25(1)(c) of the Occupational Health and Safety Act and s. 185(1) of Reg. 854. These sections provide:

25(1)-- An employer shall ensure that,

(c) the measures and procedures prescribed are carried out in the workplace;

185(1)-- A prime mover, machine, transmission equipment or thing that has an exposed moving part that may endanger the safety of any person shall be fenced or guarded unless its position, construction or attachment provides equivalent protection.

[12] The Crown contends that the press operated by Mr. Roesler had an exposed moving part that endangered him. As support for its position, the Crown relies on the apparent circumstances causing Mr. Roesler's death, as well as evidence that the press' moving index beam was exposed at the back of the press. Judging from its cross-examination of the Crown's witnesses, Timminco's defence is that it took significant steps to promote and provide a safe workplace, and that it had no knowledge of the exposed area the Crown contends presented a danger to employees such as Mr. Roesler.

[13] At the close of the Crown's case, Merredew Prov. J. [(1998), 39 C.C.E.L. (2d) 54 (Ont. Prov. Div.)] allowed Timminco's motion for a directed verdict of acquittal. In his ruling on the motion, he found [at p. 59 C.C.E.L.] that the moving index beam "proved to be a danger to Mr. Roesler" and [at p. 61 C.C.E.L.] that the "location of the deceased between the travelling beam arm and the post could be circumstantial evidence pertaining to the cause of death". However, he concluded that the Crown was also required to lead, but did not lead, "evidence of apparent danger". He reached this conclusion on the basis of his interpretation of the judgment of this court in R. v. Grant Paving & Materials Ltd., supra. In his view, there was no evidence to suggest that Timminco knew that the exposed moving index beam presented a hazard to a worker such as Mr. Roesler. Therefore, the trial judge granted Timminco's motion for a directed verdict and acquitted Timminco. In relying on the directed verdict motion, he said [at p. 62 C.C.E.L.]:

I could not and would not instruct that the fact of an accident, simpliciter, is evidence of the actus reus. To so instruct would be to put the employer in the position of the guarantor of the safety of the employee. Both counsel and I agree that is not the law.

If I had to instruct, I would have to point out to the jury that every prosecution witness who addressed the issue agreed that the crown press as operated for about 7 or 8 years at Timminco was NOT a danger . . . There is no evidence of an actus reus. There is a wholly unexplained tragic accident. That is all.

(Emphasis added)

[14] The appeal judge, Belch J., disagreed [1999 ONSC 36527, 48 C.C.E.L. (2d) 22, 29 C.R. (5th) 152 (Ont. S.C.J.)]. He allowed the Crown's appeal and directed that there be a new trial. He concluded that the relevant legislative provisions identified exposed moving parts as a potential danger. He concluded that the press "had a moving part which was not fenced or guarded" and that "it was obvious construction did not prevent inadvertent or intentional contact at the rear of this machine to a moving part." He held that on the facts as found by the trial judge, it was clear that Timminco had sufficient knowledge of the exposed moving part to establish the actus reus of the offence. Therefore, Belch J. found it unnecessary to consider the issue raised at trial in Grant Paving -- whether prior knowledge of a hazard is an essential element of the offence charged.

[15] Belch J. [at p. 32 C.C.E.L.] disposed of Timminco's argument that no one had identified the press as a hazard in this way:

[T]he legislation has already identified a moving part as a potential danger, and requires it be guarded. . . . The respondent was aware employees had access to an unguarded machine from the rear, whether or not it was part of their assigned work duties.

[16] He therefore concluded that the trial judge erred in allowing Timminco's motion for a directed verdict. Accordingly, he allowed the Crown's appeal and directed that there be a new trial. It is from that decision that Timminco appeals.

[17] For reasons that follow, I think that the appeal judge was correct in setting aside the directed verdict of acquittal and ordering a new trial.

II. Analysis

A. The test on a motion for directed verdict

[18] In R. v. Litchfield, 1993 SCC 44, [1993] 4 S.C.R. 333, 14 Alta. L.R. (3d) 1, Iacobucci J. provides a succinct summary of the test on a motion for a directed verdict at p. 361 S.C.R.:

An application for directed verdict or non-suit is a matter of common law since there is no provision in the Code for such an application. This Court reviewed the test to be applied on such an application in R. v. Monteleone, 1987 SCC 16, [1987] 2 S.C.R. 154. In that case, McIntyre J. wrote for the Court that the test to be applied is derived from the decision in United States of America v. Shephard, 1976 SCC 8, [1977] 2 S.C.R. 1067. That test (at p. 161) is whether there is "any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction".

[19] Like McIntyre J. in United States of America v. Shephard, 1976 SCC 8, [1977] 2 S.C.R. 1067, 70 D.L.R. (3d) 136, Iacobucci J. made it clear in Litchfield that once the determination of admissibility has been made on a motion for directed verdict, it is not the function of the trial judge to weigh the evidence or to test its quality or reliability.

[20] In R. v. Charemski, 1998 SCC 819, [1998] 1 S.C.R. 679, 157 D.L.R. (4th) 603, Bastarache J. reaffirmed at para. 3 that the trial judge may direct a verdict of acquittal only if the Crown fails to adduce "some evidence of culpability" for every essential element of the offence charged.

B. Issues on appeal

[21] It is against the background of the proper test on a motion for directed verdict that I turn to consider the two issues on which leave was granted. First, whether the Crown must establish as part of the actus reus of the offence charged that the employer, Timminco, knew that the press had an exposed moving part and that it presented a danger to Timminco's employees, including Mr. Roesler. Second, what the precedential ambit of Grant Paving is, particularly as it relates to the issue whether the Crown has to establish knowledge of a hazard as part of the actus reus of the offence charged.

1. The actus reus of a strict liability offence does not include a mental element.

[22] The Occupational Health and Safety Act is a public welfare statute. The broad purpose of the statute is to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace. It should be interpreted in a manner consistent with its broad purpose. See R. v. Ellis-Don Ltd. (1990), 1990 ONCA 6968, 1 O.R. (3d) 193, 5 C.R.R. (2d) 263 (C.A.), reversed on other grounds, 1992 SCC 94, [1992] 1 S.C.R. 840, 7 O.R. (3d) 320n; Machtinger v. HOJ Industries Ltd., 1992 SCC 102, [1992] 1 S.C.R. 986, 91 D.L.R. (4th) 491.

[23] Occupational Health and Safety Act offences are, prima facie, strict liability offences. This was made clear by Dickson J. in R. v. Sault Ste. Marie (City), 1978 SCC 11, [1978] 2 S.C.R. 1299, 40 C.C.C. (2d) 353. At pp. 1325-26 S.C.R., pp. 373-74 C.C.C., he said:

In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.

The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.

[24] The burden of proof is on the Crown to establish the actus reus of a strict liability regulatory offence, beyond a reasonable doubt. The burden of proving a defence is on the defendant in the proceedings. This is in part because, as Dickson J. noted in Sault Ste. Marie, it is the defendant who is in the best position to know what actions, if any, were taken to avoid a statutory breach. See also R. v. Wholesale Travel Group Inc., 1991 SCC 39, [1991] 3 S.C.R. 154, 49 O.A.C. 161 and R. v. Nickel City Transport (Sudbury) Ltd. (1993), 1993 ONCA 8483, 14 O.R. (3d) 115, 104 D.L.R. (4th) 340 (C.A.).

[25] As a policy consideration, where the hazard in question is caused by equipment that the employer has a special knowledge and control over, it is appropriate that the employer bear the burden of proving a defence. On this subject, Dodge J. in R. v. Lake Ontario Cement Ltd. (1990), 5 C.O.H.S.C. 192 (Ont. Prov. Div.), aptly stated at p. 195:

In this case the employer controls the machine in question; he establishes and he controls the manufacturing process in the plant and he directs and supervises the employee in his duties. The very nature of the machine, how it works and the risks it poses to the worker are all matters within the employer's special pool of knowledge. Consequently, the employer and those he engages to supervise the worker have a special responsibility for his safety that is recognized and defined in the Occupational Health and Safety Act.

[26] To impose an obligation on the Crown to prove a mental element on a strict liability offence would impede the adequate enforcement of public welfare legislation. See R. v. Sault Ste. Marie, supra, and R. v. Wholesale Travel Group Inc., supra. Furthermore, this would convert a strict liability regulatory offence into a mens rea offence. In my opinion, clear language is required to create a mens rea offence in a public welfare statute. Yet words like "wilfully", "with intent", "knowingly" and "intentionally" are conspicuously absent from s. 25(1)(c) of the Occupational Health and Safety Act. Section 25(1)(c) simply requires that an employer "shall ensure that . . . the measures and procedures prescribed are carried out in the workplace". In fact, use of the word "ensure" suggests that the Legislature intended to impose a strict duty on the employer to make certain that the prescribed safety standards were complied with at all material times.

[27] Where an exposed moving part "may endanger" a worker, the regulation requires that a guard or fence be provided to prevent access to the moving part. Admittedly, the Crown must establish that the exposed moving part may endanger a worker before there can be a conviction. However, in my view, there is no requirement that the Crown show that the employer in fact knew of the danger. See R. v. Seeley & Arnill Aggregates Ltd. (1993), 9 C.O.H.S.C. 1 (Ont. Gen. Div.). The words "may endanger" clearly suggest that there can be violation of s. 185(1) of the Regulations where there is potential endangerment of a person by an exposed moving part, even if it is not established that any particular person was actually endangered by the exposed moving part.

[28] The foreseeability of a hazard is properly to be considered as part of a due diligence defence. See R. v. Rio Algom Ltd. (1988), 1988 ONCA 4702, 66 O.R. (2d) 674, 29 O.A.C. 349 (C.A.).

2. The proper interpretation of R. v. Grant Paving

[29] In my opinion, in order to establish the actus reus of the offence charged, the Crown was required to lead some evidence:

-- that Timminco was Mr. Roesler's employer;

-- that Timminco had a "machine" (the press) with an exposed moving part that may endanger the safety of any person; and

-- that the exposed moving part was not "fenced or guarded", or constructed in such a way that would provide equivalent protection.

[30] The agreed statement of facts acknowledged that on June 24, 1996, Mr. Roesler was a worker as defined by the Occupational Health and Safety Act, and that Timminco was his employer. It was further agreed that Mr. Roesler died of injuries he sustained in a workplace accident on June 24, 1996. His body was found at the back of the press in an unguarded area where there was easy access to an exposed moving part -- the press' moving index beam.

[31] In my view, the Crown adduced some evidence with respect to each essential element of the offence charged. Thus, unless this court's judgment in Grant Paving, supra, required the Crown to prove that Timminco was also aware of the hazard presented by the press' exposed moving index beam, the trial judge should not have directed a verdict of acquittal.

[32] In Grant Paving, the employer was charged with failing to ensure that measures and procedures prescribed by certain Occupational Health and Safety Act regulations were carried out contrary to s. 25(1)(c) of the Act. The applicable regulations required a worker to wear eye-protection and protective clothing. The employer was required to provide its employee with an eye-wash fountain if the employee was exposed to injury to the skin or eyes from contact with a hazardous substance. The charges were dismissed at the conclusion of the Crown's case on a defence motion for a directed verdict.

[33] In dealing with the motion, the trial judge in Grant Paving made a number of discrete findings. Two of those findings require brief comment. First, he concluded that "there was nothing before the court to show that [a worker] was exposed to the hazard." Second, he held that "the accused has to knowingly be responsible for circumstances to be held liable by law." The second of these findings has created a problem in the jurisprudence. See R. v. Mills, a judgment of the Ontario Court, Provincial Division, delivered December 6, 1996 and R. v. Peake, [1999] O.J. No. 696. The trial judges in both Mills and Peake, respectively, relied on Grant Paving, in granting a motion for a directed verdict. They interpreted Grant Paving as requiring that the Crown must prove that the employer had knowledge of the hazard. Other judges have not interpreted Grant Paving to stand for this proposition. See for example, R. v. Jetters Roofing and Wall Cladding Inc. v. Blouse, [1999] O.J. No. 5244, per Stafford J.P. at para. 20.

[34] In Grant Paving, the appeal judge reviewed the issue of foreseeability of the hazard and worker error. He found that the trial court erred in considering "factors that properly should have gone to the defence of due diligence". He therefore concluded that the trial judge erred in granting the employer's motion for a directed verdict.

[35] In a brief endorsement on the employer's appeal, this court focused on the trial judge's finding that there was no evidence that the employee was exposed to a hazard. The court concluded that this finding of fact should not have been disturbed at the first level of appeal. Thus, the employer's appeal was allowed. The court's endorsement did not refer to any of the other reasons of the trial judge. In my view, given the manifestly limited scope of the endorsement, Grant Paving is not authority for the proposition that the Crown must prove knowledge of a hazard in prosecutions under the Occupational Health and Safety Act and its Regulations.

[36] Reasons of this court given by "endorsement" are mainly directed to the immediate parties. Endorsements, like all judgments of this court, have precedential value but they should not be construed to support broad overarching principles which are not specifically addressed in them. Thus, this court's judgment in Grant Paving should be taken as authority only for the proposition that the appeal judge erred in not deferring to the trial judge's finding of fact that there was no evidence that Grant Paving's employee was exposed to a hazard. Grant Paving has no further precedential value.

III. Conclusion

[37] In my opinion, the appeal court judge was correct in concluding that the trial judge erred in granting the defence motion for a directed verdict and in acquitting the appellant. Timminco's lack of knowledge of the hazard is relevant only in respect of any due diligence defence it may advance. Grant Paving is not authority for the general proposition that in a regulatory offence such as was charged here, the Crown must establish that the employer had knowledge of the hazard in question.

[38] I would therefore dismiss the appeal.

Appeal dismissed.