DATE: 20050916

DOCKET: M32605

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF LABOUR) (Applicant) –and- DOFASCO INC. (Respondent)

BEFORE:

LASKIN J.A.

COUNSEL:

Stephen Mason

for the applicant

Robert W. Little

for the respondent

HEARD:

September 8, 2005

E N D O R S E M E N T

[1] The Ministry of Labour (MOL) moves under section 131 of the Provincial Offences Act for leave to appeal from the judgment of Zuraw J. on count one of the information. The justice of the peace acquitted Dofasco on count one, and Zuraw J. dismissed MOL’s appeal of that acquittal.

[2] The charges against Dofasco arose when a worker used a machine recklessly and suffered a serious hand injury. Count one charged that Dofasco had breached section 25 of the Regulations for Industrial Establishments because the machine was not guarded. Section 25 provides:

An in-running nip hazard or any part of a machine, device or thing that may endanger the safety of any worker shall be equipped with and guarded by a guard or other device that prevents access to the pinch point.

[3] To obtain leave under section 131 of the Provincial Offences Act, the MOL must meet two requirements: it must raise a question of law; and it must satisfy the court that it is essential for the public interest or for the due administration of justice that leave be granted. The first requirement is jurisdictional; the second contains a measure of judicial discretion.

[4] Whether the proposed appeal raises a question of law turns on how one characterizes the basis of the justice of the peace’s decision (upheld on appeal). The MOL submits that the decisions below raise the following question of law: whether an employer can comply with section 25 of the Regulations by substituting for a guard, workplace rules and procedures, which, if followed, would keep workers a safe distance from the machine. Dofasco contends that the decisions below turn on factual findings or findings of mixed fact and law but do not raise a pure question of law.

[5] I agree with the MOL’s characterization. The critical passage of the justice of the peace’s reasons is as follows:

In the first instance it would appear that the prosecution has made a prima facie case regarding this count, and by definition and letter of the law, the fact that there is no guard at the pinch points, a conviction should be registered. The defendant, however, has presented evidence of procedures and enhancements to the No. 1 66-inch Cold Rolling Mill known as the hands-free loading unit... procedures employed known as the push bar and use of hand-grippers to assist in the feeding of the coil into the mill put the employee, at the very least, at arm’s length from any pinch points, and therefore, looking at the intent of the law, would preclude the need for a guard on a pinch point as it would be, as it would or should be a non-issue. As such, on this count the court finds that the prosecution has failed in proving beyond a reasonable doubt on count one, and count one is dismissed. An acquittal is entered.

[6] As I read these reasons, the justice of the peace has concluded that Dofasco’s training programmes, workplace procedures (admittedly exemplary), and “enhancements” (the tilting mechanism in the machine) dispensed with the requirement for a guard. Whether they do so seems to me to raise a question of law: the proper interpretation of section 25.

[7] I might be more sympathetic to Dofasco’s position if the justice of the peace made a finding under section 25, whether the machine could endanger the safety of any worker. Such a finding would be a finding of fact. But the justice of the peace does not appear to have addressed this question expressly in his reasons. Of course, the accident that gave rise to these charges suggests this is a machine that may endanger the safety of workers unless access to it is properly guarded.

[8] As the MOL points out, workplace safety regulations are not designed just for the prudent worker. They are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless.

[9] The MOL’s proposed appeal raises a question of law. And, in my view, it is “essential in the public interest” that leave be granted. The evidence of Nax Nagalingan filed on the motion shows that the failure to guard machines is one of the most common infractions in the Regulations. Thus, I do not accept Dofasco’s contention that the focus of the appeal is so narrow leave should be denied. This court should consider whether employers are entitled to rely on workplace rules and training procedures to avoid the “guard requirements” of the Regulations.

[10] Leave to appeal is granted. The appellant shall have one hour for the argument of its appeal. The respondents shall have forty-five minutes. I thank counsel for their helpful submissions on the motion.