CITATION: Ontario (Labour) v. MBI Limited, 2008 ONCA 119
DATE: 20080219
DOCKET: C45790
COURT OF APPEAL FOR ONTARIO
WINKLER C.J.O. and SHARPE and JURIANSZ JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF LABOUR)
Respondent
and
MBI LIMITED c.o.b. as SMURFIT-MBI
Appellant
Thomas A. Stefanik for the appellant
Giuseppe Ferraro and David R. McCaskill for the respondent
Heard & released orally: February 13, 2008
On appeal from judgment of Justice John Ritchie of the Superior Court of Justice dated February 24, 2006.
ENDORSEMENT
[1] In 2001, an employee of the appellant was injured while attempting to clean scrap from the bottom feeder of a machine that makes and bundles corrugated boxes. His arm got caught in the machine. He suffered broken bones and nerve damage.
[2] The appellant was charged under the Occupational Health and Safety Act with:
(a) failing to ensure that a guard was in place over the pinch point;
(b) ensuring the machine was properly locked out; and
(c) failing to ensure that there was an emergency stop button within easy reach of the operator.
[3] The justice of the peace dismissed the charges and the summary conviction appeal judge allowed the Minister’s appeal and ordered a new trial. The employer appeals to this court.
[4] The justice of the peace found that the Crown had failed to provide authoritative definitions of technical terms that were essential to the definition of the three offences with which the appellant was charged. These terms included on Count 1 “pinch point” and “in-running nip-hazard”, the meaning of “lock-out” on Count 2 and “within easy reach” on the third count.
[5] In our view, the summary conviction appeal judge’s reasons when fairly read as a whole, show he allowed the appeal on the ground that the justice of the peace erroneously dismissed the charges because the Crown did not provide authoritative definitions of these technical terms or call expert witnesses to explain them.
[6] We agree and a few passages from the justice of the peace’s reasons illustrate this point. He said:
At page 33:
The prosecution failed to prove this charge due to failure to provide authoritative definition of a key term in the charge itself.
At page 34:
Due to the prosecution’s failure to authoritatively define and prove failure to guard against a “pinch point”, I have a reasonable doubt concerning the prosecution’s case on this charge.
At page 35:
In the absence of an authoritative statutory, regulatory, or dictionary definition of “lock-out”, the prosecution cannot possibly prove its case.
At page 37:
The term “within easy reach of the operator”, appears in the Ontario Regulations. However, throughout these trial proceedings, I was not referred to any definition of the term in the statute, the regulations, or the caselaw. Nor was any dictionary definition advanced by the prosecution.
[Emphasis in original]
[7] The lay witnesses at trial gave their view of the meaning of the technical terms. Although their evidence may have conflicted in some respects, the court was able to and should have made findings on the evidence. In requiring expert testimony, the justice of the peace erred in principle and a new trial is necessary.
[8] While the summary conviction appeal judge should have discussed the justice of the peace’s finding of due diligence on Count 1, in our view, the evidence of employee training is incapable in law of establishing the defence of due diligence in ensuring a guard was in place on the machine.
[9] In these circumstances, the appeal is dismissed.
“W.K. Winkler C.J.O.”
“Robert J. Sharpe J.A.”
“R.G. Juriansz J.A.”