DATE: 20040716

DOCKET: C39910

COURT OF APPEAL FOR ONTARIO

WEILER, LASKIN and FELDMAN JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

IN RIGHT OF ONTARIO

Earl A. Cherniak (Q.C),

and Valerie D. Wise for the appellant

Respondent

• and -

Line Forestier

for the respondent

BRAMPTON BRICK LIMITED

Appellant

Heard: February 2, 2004

On appeal from the decision of Justice Katherine L. McLeod of the Ontario Court of Justice dated November 15, 2002, which upheld the conviction imposed by Justice of the Peace W. Ross, dated January 19, 2000.

WEILER J.A.:

[1] Mr. Budden had been employed as a kiln operator at Brampton Brick for approximately one month when he lost his leg. A prosecution under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, (“OHSA”) ensued and Brampton Brick was convicted by Justice of the Peace W. Ross of violating s. 25(2)(h) of the OHSA, which provides: “(2)…an employer shall…(h) take every precaution reasonable in the circumstances for the protection of a worker.”

[2] The precaution at issue was not one mandated under the OHSA for the health and safety of employees. It was a precaution that Brampton Brick’s maintenance manager had foreseen as a safety measure for persons unfamiliar with the operation of the plant. Although Brampton Brick approved the installation of the safety measure, the trial judge found that the installation of the safety measure was not implemented in a timely fashion and convicted Brampton Brick of failing to take every precaution reasonable in the circumstances for the safety of a worker. On appeal, Justice K. McLeod of the Ontario Court of Justice upheld Brampton Brick’s conviction. Brampton Brick further appeals, with leave, to this court on questions of law pursuant to s. 131(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33.

[3] The main issues are whether the trial judge and appellate judge took into consideration “the circumstances”, namely the existence of the other existing safety measures, in convicting Brampton Brick and whether the trial judge properly applied the onus or burden of proof. Other issues relate to the particulars respecting the charge and the adequacy of the trial judge’s reasons. For the reasons that follow I would dismiss the appeal.

BACKGROUND

[4] Mr. Budden entered the drying area (Dryer #1) in the brick factory and became trapped by a moving car full of bricks. Mr. Budden’s injury was not related to his duties at work. Mr. Budden had sometimes walked through the drying area with Mr. Madeiros, his supervisor, as a short cut on their way to another part of the building. Mr. Budden had also been observed cutting through the drying area on his own and had been cautioned against doing so until he had more experience. He was told to use stairs that allowed workers to cross over the drying area rather than walk through it. The trial judge found that on the day the accident took place, Mr. Budden had received instructions to join Mr. Madeiros in another part of the building. On his way, Mr. Budden stepped inside Dryer #1 to check on one of the two garage doors to the drying area that he believed was not operating properly.

[5] Kiln cars would move from the holding room of the brick factory into the drying area through a garage door. There were two tracks, Track 4 and Track 5, on which the cars would come from Holding Room #1 into Dryer #1. There were two ways to halt the moving production parts in the drying area. The first was the lock out device on the control panel located by the man door* on the outside of the drying room, which would shut off the power. This is a handle that one can pull down with a lockout mechanism on it. The second option was to use the manual/auto button located on the wall near the man door, which is a button that can be pushed in or pulled out. Mr. Budden was aware that he could halt production in the drying area by using either the lock out device on the control panel or the button on the wall, but did not use either of them.

[6] Mr. Budden entered using one door and while inside, the kiln car on Track 5 began moving towards him, at the rate of eleven feet per minute. The kiln car was only a few yards away when it started to move. Mr. Budden tried to exit by using the opposite man door, but he did not make it. His left leg was pinned by the kiln car against the door.

[7] Three months before Mr. Budden’s injury, a maintenance manager, Mr. Milton, who was concerned that outsiders unfamiliar with the plant’s operating system could be injured, recommended the installation of a third safety measure on the man door. This third safety measure was the installation of an automatic switch on the door that would stop the movement of the cars whenever the door to the dryer room was opened. Installation of this automatic switch had been approved but had not been completed at the time of the injury to Mr. Budden.

[8] Brampton Brick was charged with three counts under the OHSA. Count one charged Brampton Brick with failing to ensure that the measures and procedures prescribed by s. 16 of Ontario Regulation 851, R.R.O. 1990, were carried out at a workplace... contrary to s. 25(1)(c) of the OHSA. The particulars specified that the employer failed to ensure that a door leading to a hazardous, restricted or unsafe area was identified by a warning sign posted on it. Count two charged Brampton Brick with failing to provide information, instruction and supervision to a worker... contrary to s. 25(2)(a) of the OHSA. The particulars specified that the employer failed to provide information or instruction to a worker about the hazard of entering Dryer #1 while the automated brick processing system was operating. The trial judge granted a motion for nonsuit in relation to the first count and dismissed the charge on the second count. Mr. Budden had been given safety training including instructions on the lockout procedure for the drying room. The charge on which a conviction was registered was contained in count 3 and charged Brampton Brick with failing, as an employer, to take every precaution reasonable in the circumstances for the protection of a worker at a workplace, pursuant to s. 25(2)(h) of the OHSA. The charge particularized that Brampton Brick failed “to take the reasonable precaution of ensuring the doors to Dryer #1 were equipped with a safety switch or control mechanism that prevents the movement of any material or machinery in this area until a worker has exited the dryer.”

[9] After three days of evidence, Ross J.P. convicted Brampton Brick. Once the maintenance manager foresaw that outside workers, and by inference new employees, could be injured, the company recognized that it should correct the problem by the installation of a safety switch that automatically halted the movement of the cars in the dryer when the man door was opened. The trial judge found that, “It is recognized that the area that Mr. Budden was in, prior to the accident, was of concern. The maintenance manager, his concerns were of this area, along with the maintenance department, because they were allowing other maintenance contracts or outside workers into the area of repair or repairs that were necessary to Brampton Brick and the Court believes that they recognized that this was an area that should be corrected.” The trial judge began his reasons on this count by stating his conclusion that there would be a conviction and by commenting on the failure of the maintenance department to communicate with the person in charge of safety concerning the importance of installing the automatic switch. While Ross J.P.’s reasons on this point are not entirely clear, the appellate judge inferred that the trial judge found that the failure of the maintenance personnel to communicate the importance of installing the automatic switch to the safety personnel was the reason that installation of the switch had not been completed at the time of the accident.

[10] Brampton Brick appealed. The grounds of appeal argued before McLeod J. and her holding in relation to each of them are at the heart of this appeal so I will review them in some detail:

i. Adequacy of the reasons- The appellant submitted that the trial judge did not deal with the issue of whether the Crown had proven the case beyond a reasonable doubt and his reasons were devoid of any findings with respect to due diligence.

[11] McLeod J. held that the failure of the trial judge to more fully articulate his reasons did not give rise to an error of law. The judgment reflected what the trial judge considered to be crucial, that is the failure to communicate the importance of the safety switch so that the work order could be fulfilled in an expeditious manner.

ii. Alleged Error in refusing motion for a directed verdict - The appellant submitted that the trial judge erred in holding that there was some evidence upon which the Crown could proceed in relation to counts two and three.

[12] McLeod J. noted that the Crown was obliged to introduce some evidence of culpability for every essential element of the offence charged, that the offence was a strict liability offence, and that the burden of proof was on the crown to establish the actus reus. She stated:

In order to establish the actus reus of the offence, the Crown must provide some evidence that:

a) Brampton Brick was an employer;

b) That the safety switch or control mechanism that prevented the movement of any material or machinery in this area until a worker has exited the dryer was a reasonable precaution; and

c) That Brampton Brick failed to provide such a precaution.

There was clear and uncontested evidence that Brampton Brick was an employer and that one of its employees had been injured.

With respect to whether there was evidence adduced by the Crown that the safety switch was a reasonable precaution the Appellant raised two arguments:

Firstly that given all of the numerous safety measures and the fact that the doors in question were equipped with two different safety mechanisms; all reasonable precautions had been taken. The evidence revealed that the two existing safety mechanisms did not automatically prevent the closing down of the machinery once the door was opened: one was a lock out device on the control panels which and to be physically switched by a person and secondly, an auto to manual stop.

In this Court’s view, the learned Justice of the Peace did not err in his conclusion that the directed verdict application should fail. It was clearly open to the Court to find from the testimony of Mr. Milton [the maintenance manager] that a switch on the door leading to dryer #1 which would if the doors opened, disable the moving machinery, was a reasonable precaution. Neither of the existing safety mechanisms automatically prevented the machinery from moving once the door was open [emphasis added].

[13] Brampton Brick also argued that the automatic safety switch would have required another worker to stand by the door to ensure that it remained open thereby preventing the movement of the machinery. McLeod J. responded as follows:

That additional precaution too may or may not have been another reasonable precaution in addition to other reasonable precautions taken by the company. This fact, in this Court’s view, does not affect the determination of whether the switch was a reasonable precaution.

iii. Alleged error by the trial judge in finding that all of the essential elements of the offence had been proven beyond a reasonable doubt

[14] McLeod J. held that it was implicit in the trial judge’s findings that the Crown had proven every element of the offence beyond a reasonable doubt, “specifically that the safety switch was a reasonable precaution.” She then referred to the evidence in support of the trial judge’s findings which was:

• the evidence of Mr. Milton’s concerns for the safety of outside contractors.

• the evidence of Mr. Pabla, the plant manager, that training a new fireman such as Mr. Budden could take up to six months.

• the inference open to the trial judge that the safety concerns relating to outside contractors were the same as those for people coming in from the outside.

[15] In light of this evidence she held that the holding of the trial judge that the Crown had proven its case beyond a reasonable doubt was one that should not be interfered with on appeal and dismissed this ground of appeal.

iv. Alleged error by the trial judge in failing to find a defence of due diligence was proven on a balance of probabilities. In this portion of her reasons, McLeod J. addressed Brampton Brick’s argument that that it had taken numerous steps to ensure safety at the plant, including educational sessions on health and safety, assignment of experienced workers to train novice employees, education of new employees as to the proper lock out and safety procedures within the plant, and the fact that Mr. Budden was cautioned about the inadvisability of taking shortcuts through the dryers. She also noted that once Mr. Milton raised a concern, steps toward implementation had been taken. She then stated:

Clearly that implementation was never a significant priority and there was no evidence that in the interim any steps were taken cautioning or more properly prohibiting workers from traversing the dryer. Mr. Budden, who had only been working at the plant for two weeks before his accident, had been made aware of the short cut route by his fellow employees; this being some three months after the work order for the switch was generated.

[16] Bearing in mind that it was not for the reviewing court to substitute its own decision for the trial court’s decision, McLeod held it was open to the trial judge to conclude that the defence had not been made out and dismissed the appeal.

[17] The appellant raises the following grounds of appeal: (1) Failure by the courts below to consider as an element of the offence to be proven by the Crown “the circumstances” before convicting the company of failing to take every reasonable precaution; (2) Failure by the trial judge to convict on the basis alleged in the particulars and to convict instead on a different and more onerous ground; (3) Misdirection regarding the onus of proof and the defence of due diligence; (4) the adequacy of the reasons. A fifth ground of appeal raised in the factum - use of the evidence regarding additional safety measures - was not really pursued in oral argument. Counsel for the appellant conceded that if there was evidence that putting the automatic switch on the door of the drying area would assist outside contractors then it would also assist new employees.

Analysis

1. Did the trial judge err in convicting the company on the basis that it failed to take every reasonable precaution in the circumstances?

[18] The statute requires the Crown to prove that Brampton Brick failed to take every precaution reasonable in the circumstances, not some broader notion of acting reasonably. The inquiry is to be conducted in light of the particular surrounding circumstances. “The circumstances” is an element of the offence and those circumstances must be considered before concluding the precaution lacking was reasonable.

[19] Brampton Brick points out that in upholding its conviction the appellate judge simply held that it was open to the trial judge to find that the proposed automatic switch “was a reasonable precaution.” She did not use the words “a reasonable precaution in the circumstances”. Brampton submits that her failure to use the words “in the circumstances” indicates that she did not consider the circumstances an element of the offence as opposed to some broader notion of acting reasonably.

[20] When assessing the appellant’s argument it is helpful to consider the overview of the reasons by the appellate judge I have provided above. Her reasons demonstrate a strong command of the trial record and a careful analysis of the evidence. The appellate judge rejected Brampton Brick’s argument that “given all of the numerous safety measures and the fact that the doors in question were equipped with two different safety mechanisms” a third safety mechanism was not a reasonable precaution that was required. She held, “The evidence revealed that the two existing safety mechanisms did not automatically [sic result in] the closing down of the machinery once the door was opened: one was a lock out device on the control panels, which had to be physically switched by a person and secondly, an auto to manual stop.” In the next paragraph, the appellate judge held that it was open to the trial judge to find from the evidence of Mr. Milton that the automatic switch was a reasonable precaution because neither of the existing mechanisms automatically prevented the machinery from working once the door was opened. Had the appellate judge not given the reason for her conclusion that the automatic safety switch was a reasonable precaution by immediately adding, “Neither of the existing safety mechanisms automatically prevented the machinery from moving once the door was open”, I may have agreed with the appellant’s submission that the appellate judge did not consider the circumstances. The existing safety mechanisms she considered were, however, the very circumstances that Brampton Brick alleges had to be considered. The appellate judge’s omission of the words, “in the circumstances” does not demonstrate that she failed to consider the circumstances in this case. Her analysis was a contextual one in which she explicitly addressed the pre-existing safety precautions. There is no obligation for the court to parrot the words of the section. I would dismiss this ground of appeal.

[21] Moreover, there are two other considerations that buttress this finding that the automatic device was reasonable in the circumstances. The first is that both of the existing mechanisms were a few yards away from the dryer doors. The second is the evidence that workers regularly crossed through the dryer area instead of using the stairs over top.

2. Did the trial judge convict Brampton Brick on the basis of an alleged “reasonable precaution” that was different from and more onerous than the particulars pleaded in the count?

[22] The OHSA is a public welfare statute. Its broad purpose is to protect workers by requiring employers to conform to certain safety standards in the workplace. Having regard to its remedial purpose the legislation is not to be given a narrow technical interpretation. However, like all penal legislation, the OHSA must be interpreted in a manner consistent with the procedural rights of the accused. Interpretation of the legislation requires the court to both promote the objects of the legislation and at the same time respect the procedural rights of the accused: Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 16893 (ON CA), 58 O.R. (3d) 37 (C.A.) at paras. 17 and 20.

[23] One of the procedural rights of the accused is the right to full and fair notice of the charges so as to be able to mount a full and fair defence. For the purpose of considering whether sufficient notice has been provided to an accused, consideration shall be given to any reference to a section, subsection, paragraph or subparagraph that creates the offence charged: R. v. Cote, 1977 1 (SCC), [1978] 1 S.C.R. 8 at 12-13.

[24] In general, the Crown is bound by the particulars set out in the information and must prove what is alleged in them. It is not sufficient for the Crown to simply allege that every precaution reasonable in the circumstances was not taken: R. v. Firestone Canada Ltd. (unreported, June 14, 1979) (Div. Ct. of Ontario).

[25] In this case the section creating the offence charged, s. 25(2)(h), was referred to in count 3 of the information. In addition, the particulars stated what reasonable precaution the company was alleged to have failed to take, namely, failing “to take the reasonable precaution of ensuring the doors to Dryer #1 were equipped with a safety switch or control mechanism that prevents the movement of any material or machinery in this area until a worker has exited the dryer.”

[26] Brampton Brick submits that it had two safety switches or control mechanisms on the door. What was really alleged was the failure to have an automatic switch and the word automatic was not used. There is no suggestion in the evidence, however, that Brampton Brick did not know what safety switch was meant in the particulars. Indeed, had Brampton Brick wished to do so, it could have requested further particulars. That Brampton Brick did not do so supports the conclusion that it knew the substance of the allegation against which it had to defend.

[27] Brampton Brick’s main complaint in relation to this ground of appeal is that the trial judge convicted it for a failure to communicate and that failure to communicate was not alleged in the particulars. The appellate judge held that the failure to communicate referred to by the trial judge was the failure to communicate the importance of a safety switch so that the work order for it could be fulfilled in an expeditious manner. I agree with the appellate judge’s reading of the trial judge’s reasons. The trial judge did not convict Brampton Brick for a reason extraneous to the particulars. He held in essence that the maintenance department foresaw the likelihood of an accident if an automatic safety switch were not installed and that the reason the automatic switch had not been installed three months after the work order was given was due to a failure to communicate within the company. I would dismiss this ground of appeal.

3. Did the courts below misdirect themselves as to the onus of proof?

[28] The offence of which Brampton Brick was convicted has been characterized in R. v. City of Sault Ste. Marie (1978), 1978 11 (SCC), 40 C.C.C. (2d) 353 (S.C.C.) as one of strict liability. Strict liability offences involve consideration of what a reasonable person would do in the circumstances: R. v. Chapin (1979), 1979 33 (SCC), 45 C.C.C. (2d) 333 at 374 (S.C.C.). In a charge under s. 25(2)(h), the onus is on the Crown to prove beyond a reasonable doubt that the precautions particularized in the information are ones that a reasonable employer in the circumstances of the company charged ought to have implemented for the protection of the worker: R. v. Inco Ltd., [2001] O.J. No. 4938 at para. 32 (Sup.Ct). In response to a prima facie case that the employer did not take the particular precaution a reasonable person would take in the circumstances, the employer is entitled to raise a defence of due diligence, that is, to show that it was in no way negligent: Chapin, supra, at 343-4. The employer must show it acted reasonably with regard to the prohibited act alleged in the particulars not some broader notion of acting reasonably: R. v. Kurtzman, (1991), 1991 7059 (ON CA), 66 C.C.C. (3d) 161 (Ont. C.A.).

[29] In R. v. Rio Algom Limited (1988), 1988 4702 (ON CA), 66 O.R. (2d) 674 at 682 (C.A.) Goodman J.A. held that, “the reasonable foreseeability of danger resulting from an act or omission which constitutes prima facie proof of the offence alleged is one of the factors to be considered in deciding whether an accused took all the care which a reasonable man might have been expected to take in the circumstances.”

[30] In this case the particularized precaution at issue, an automatic safety switch, was not mandated by the regulations. The question was whether the automatic safety switch ought to have been installed in the circumstances for the safety of the employee. The trial judge convicted Brampton Brick on the basis that once the maintenance manager foresaw that outside workers, and by inference new employees, could be injured, the company recognized that it should correct the problem by the installation of a safety switch that automatically halted the movement of the cars in the dryer when a person entered the trying room. By implication he held Brampton Brick’s delay in implementing the switch due to a failure to communicate with the person in charge of safety was not reasonable and did not amount to the exercise of due diligence.

[31] Brampton Brick argued before the appellate judge that the trial judge misapplied the onus of proof in part because the trial judge did not reference the onus of proof in his reasons for conviction. In addition, Brampton Brick argued he erred in holding that the elements of the offence had been proven and erred in failing to find that due diligence had been made out on a balance of probabilities.

[32] McLeod J. dismissed the first argument respecting the failure of the trial judge to reference the burden of proof in relation to count 3 on the basis that it was implicit in the reasons of the trial judge that the Crown had proven beyond a reasonable doubt each and every element of the required offence and that there was evidence to support his finding.

[33] In assessing whether McLeod J. correctly held it was implicit in the reasons of the trial judge that the Crown had proven its case beyond a reasonable doubt, it is helpful to consider how the trial judge approached count 2 of the indictment, a count on which he acquitted the appellant.

[34] Count 2 of the indictment charged that Brampton Brick failed, “to provide information, instruction and supervision to a worker to protect the health or safety of a worker at a workplace” contrary to section 25(2)(a) of the OHSA. The particulars alleged that Brampton Brick had failed to provide information or instruction to the worker about the hazard of entering Dryer #1 while the automated brick processing system was operating.

[35] The trial judge began his reasons on count 2 by stating his conclusion that the charge would be dismissed. The trial judge then reviewed the evidence and made the finding of fact that Mr. Budden entered the area to check the door because he thought it was not operating properly. He further found that Mr. Budden was aware that there was a device that could stop or halt the process but that he did not use the device. The trial judge then noted that Mr. Budden had been cautioned to call maintenance if he saw there was any problem. He concluded, “Therefore the Crown has not made out a case in this matter and also defence has shown that Mr. Budden was aware of a mechanism that was available to him. Likewise the Court could not convict the corporation because of the circumstances that he was sufficiently trained for lockout procedures.” In acquitting Brampton Brick on this count, the trial judge implicitly recognized both the Crown’s burden of proof and the defence of due diligence. He also showed an awareness that the charge had to be considered having regard to the circumstances.

[36] I am not persuaded that the appellate judge erred in rejecting Brampton Brick’s arguments. The trial judge’s reasons considered as a whole indicate he understood the different offences charged, the need for consideration of a due diligence defence, and the circumstances. The verdict was not unreasonable.

4. Adequacy of the reasons

[37] This ground of appeal is really tied to the other grounds of appeal argued. I agree with the appellate judge that there were significant deficiencies in the trial judge’s reasons, but they did not prevent her from conducting a meaningful appellate review of the correctness of his decision as required by R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 and R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903. That said, the Supreme Court’s confirmation of the high standard of deference afforded to a trial judge’s findings of fact in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, and the fact based nature of the charges give heightened importance to a trial judge’s reasons. Although the reasons may not have resulted in an error of law, the administration of justice is not well served when a trial judge’s reasons permit review only with great difficulty. The appellate judge, however, conducted a very thorough review of the reasons and carried out her appellate role commendably.

Conclusion and Costs

[38] For the reasons given, I would dismiss the appeal. I am of the opinion that this is not an appropriate case in which to award costs against Brampton Brick.

RELEASED: July 17, 2004

“KMW”

“Karen M. Weiler J.A.”

“I agree John Laskin J.A.”

“I agree K. Feldman J.A.”

• The term man door means people used the door as opposed to the garage door through which the bricks entered.