Ontario (Labour) v. Bruno's Contracting (Thunder Bay) Limited, 2008 ONCA 495
CITATION: Ontario (Labour) v. Bruno's Contracting (Thunder Bay) Limited, 2008 ONCA 495
DATE: 20080620
DOCKET: M35927
COURT OF APPEAL FOR ONTARIO
SIMMONS J.A. (IN CHAMBERS)
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF LABOUR)
Respondent
and
BRUNO’S CONTRACTING (THUNDER BAY) LIMITED
Applicant
Ronald J. Poirier for the Applicant Daniel Kleiman for the Respondent
Heard: April 11, 2008
SIMMONS J.A.:
[1] On February 20, 2004, Leaman J.P. convicted the applicant of failing to take all reasonable precautions in the circumstances for the protection of one of its workers in the workplace contrary to s. 25(2)(h) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. As particularized, the charge was that the applicant failed to take the reasonable precaution of ensuring that a worker working on pavement and exposed to vehicular traffic “prepared and implemented an adequate traffic control plan, consisting of flaggers and/or signs and/or traffic cones.” The particulars also stated, “a worker was injured.”
[2] The Justice of the Peace found that the actions of the applicant’s workers amounted to a construction project within the meaning of the Occupational Health and Safety Act. Further, because s. 67 of Ontario Regulation 213/91, enacted under the Occupational Health and Safety Act concerning construction projects, required the applicant to “develop in writing and implement a traffic protection plan”, he concluded that the issue of whether it was reasonable in the circumstances for such a plan to be prepared and implemented was “moot”. Following conviction, the Justice of the Peace imposed a $20,000 fine.
[3] On appeal to the provincial offences appeal court, Pelletier J. upheld the conviction and sentence. In relation to conviction, although she agreed with the analysis in the court below, she also found that, because of the high volume of truck traffic in the area where the worker was injured, the preparation and implementation of a traffic protection plan was a reasonable precaution in the circumstances. In relation to sentence, she concluded that the Justice of the Peace had considered all relevant factors and that the fine imposed was appropriate.
[4] The applicant asks for leave to appeal the conviction and sentence to this court under s. 131 of the Provincial Offences Act, R.S.O. 1990 c. P. 33.
[5] The applicant submits that the Justice of the Peace and the provincial offences appeal court judge erred in law in holding that because of the mandatory regulatory requirement it was unnecessary, in order to convict, to conduct an analysis of whether a traffic protection plan was a reasonable precaution in the circumstances. In addition, the applicant claims that the sentence imposed was harsh and unreasonable.
[6] Section 131 of the Provincial Offences Act sets a high threshold for granting leave to appeal, requiring that an applicant establish: i) special grounds; ii) a question of law alone; and iii) that in the particular circumstances, it is essential in the public interest or for the due administration of justice that leave be granted.
[7] For the reasons that follow, in my view, this is not an appropriate case in which to grant leave to appeal the conviction. The applicant did not pursue its request for leave to appeal the sentence in oral argument and given the high threshold for granting leave to appeal I see no merit in that aspect of the applicant’s request.
Background
[8] On September 7, 2001, a worker employed by the applicant was hit by a truck as it made a wide turn out of a scale area at a mill in Thunder Bay. At the time he was injured, the worker was painting lines on pavement, preparing to patch it. The worker was experienced. Although he had a flagger, traffic cones and work-in-progress signs with him, he was not using these safety devices when he was hit because he was in the process of deciding where to put them. He began painting the area where he was injured before positioning the safety devices because the location was off the roadway, it was a thirty second to one minute job, and he thought that it was safe.
Relevant Legislation
[9] Sections 25(1) and 25(2)(h) of the Occupational Health and Safety Act provide:
- (1) An employer shall ensure that,
(a) the equipment, materials and protective devices as prescribed are provided;
(b) the equipment, materials and protective devices provided by the employer are maintained in good condition;
(c) the measures and procedures prescribed are carried out in the workplace;
(d) the equipment, materials and protective devices provided by the employer are used as prescribed; and
(e) a floor, roof, wall, pillar, support or other part of a workplace is capable of supporting all loads to which it may be subjected …
- (2) Without limiting the strict duty imposed by subsection (1), an employer shall,
(h) take every precaution reasonable in the circumstances for the protection of a worker.
[10] Section 67(4) of Regulation 213/91 enacted under the Occupational Health and Safety Act states:
- (4) Every employer shall develop in writing and implement a traffic protection plan for the employers’ workers at a project if any of them may be exposed to a hazard from vehicular traffic.
Reasons of the Justice of the Peace
[11] After setting out the elements of the offence, the Justice of the Peace noted that the contentious issue was “whether it was reasonable in the circumstances that Bruno’s workers prepare and implement a traffic control plan, consisting of flaggers and or signs and, or traffic cones at this particular worksite.” In reviewing the facts, he observed that the injured worker and his flagger had merely “a nodding acquaintance” with the Ministry of Labour’s Ontario Traffic Control Manual, book seven. In addition, he noted that s. 2.1 of the Manual provides that in preparation for work, a traffic control plan should be prepared “in detail appropriate to the complexity of the work project”. This section further provides that,
for minor projects, this plan may be primarily the selection of appropriate, typical layouts. Ensure that the plan is understood by all responsible parties before the site is occupied. Any changes in the traffic control plan should be approved by an authorized individual/person.
[12] The Justice of the Peace found that “no one from Bruno’s prepared a written traffic protection or control plan with respect to this worksite” and that “none was implemented.” After noting that the injured worker’s supervisor opined in his evidence that it would take longer to prepare such a plan than for the workers to do the work, the Justice of the Peace observed that the construction industry is highly regulated and that protective legislative provisions are to be interpreted in a manner that is in keeping with its objectives and purposes. He concluded:
Bearing that in mind the issue of whether it was reasonable, in the circumstances for such a plan to be prepared and implemented by Bruno’s is moot. It is required by the regulation that applies to the work engaged in at the site.
Reasons of the Provincial Offences Appeal Court Judge
[13] The provincial offences appeal court judge held that, “[r]ead together, s. 25(2)(h) of the [Occupational Health and Safety] Act and s. 67(4) of Ontario Regulation 213/91 creates a duty on employers in construction projects involving vehicular traffic hazards to plan and implement a traffic control plan.” Further, she stated, “[g]iven that a traffic control plan was a mandatory regulatory requirement it would be an absurd situation to come to a conclusion that it was not a reasonable precaution in the circumstances involving a construction project and vehicular traffic.”
[14] The provincial offences appeal court judge also made an alternative finding that a traffic protection plan was a reasonable precaution in the circumstances. She said:
The evidence was also that it was an extremely busy pulp mill site with extensive movement of tractor trailer units and other motor vehicles moving through the site. The circumstance in which [the injured worker] was conducting his work was not a routine situation of vehicular traffic, for example, a residential street. It was a high traffic, very busy pulp and paper mill that, in my opinion, was a dangerous and challenging commercial work environment for asphalt workers and one which required more than the routine approach to traffic control. The circumstances required a well thought out traffic control plan that was implemented and properly supervised. I am of the view that given the level of vehicular hazard in this commercial setting a traffic control plan was reasonable and should have included the actual implementation of traffic cones, a flagger, barriers, signage and perhaps a traffic control person.
I am of the opinion that even in the absence of the mandatory requirements of section 67(4) of Regulation 213/91, the evidence supports a finding of guilt under s. 25(2)(h) and the alleged particulars. Any traffic control planning of the appellant was inadequate and not implemented…. [Emphasis added.]
Position of the Applicant
[15] Relying on R. v. Brampton Brick Ltd. (2004), 2004 CanLII 2900 (ON CA), 189 O.A.C. 44, the applicant submits that “the circumstances” are an element of the offence under s. 25(2)(h) of the Occupational Health and Safety Act that must be considered before concluding that a precaution was reasonable. The applicant contends that the Justice of the Peace and the provincial offences appeal court judge erred in law when they found that because s. 67(4) of Regulation 213/91 requires an employer to create a traffic protection plan, it was unnecessary to conduct any analysis of whether a traffic protection plan was a reasonable precaution in the circumstances.
[16] Further, the applicant relies on its position at trial that a traffic protection plan was not a reasonable precaution in the circumstances. At trial, the applicant argued that where, as here, the job was of brief duration, the injured worker was experienced, and a flagger and safety equipment were provided but not used, requiring a traffic protection plan is unreasonable and would create a “totally unfeasible” industry. Simply put, the applicant submitted that traffic protection plans are not necessary, practical or financially viable for small projects.
[17] The applicant also submits that the trial judge and the provincial offences appeal court judge erred in failing to consider whether the absence of a traffic protection plan had anything to do with the accident. In this respect, the applicant relies on evidence from the injured worker that he believed the truck driver who hit him saw him and that earlier that day he saw that some of the truck drivers on site failed to obey the flagger and engaged in risky driving due to impatience with the work crew.
Position of the Respondent
[18] In oral argument, the respondent did not press its position that the Justice of the Peace considered all of the circumstances in deciding whether preparing and implementing a traffic protection plan was a reasonable precaution in the circumstances, or its position that the courts below were correct in holding that it would be absurd to conclude that a mandatory regulatory precaution was unreasonable.
[19] Instead, the respondent submitted that the legal issue raised by the applicant concerning the necessity of assessing whether a traffic protection plan was a reasonable precaution in the circumstances does not warrant granting leave to appeal for two reasons: i) it is not an issue that arises frequently, and ii) on the facts of this case, it is a hypothetical issue because the provincial offences appeal court judge found that preparing and implementing a traffic protection plan was a reasonable precaution in the circumstances.
Analysis
[20] The applicant did not raise any issue in its proposed notice of appeal concerning the alternative finding made by the provincial offences appeal court judge, and relied on by the respondent, that preparing and implementing a traffic protection plan was a reasonable precaution in the circumstances. However, in oral argument, I asked the respondent on what basis the provincial offences appeal court judge was entitled to make this alternative finding.
[21] The respondent indicated that its submissions in the provincial offences appeal court were premised on the curative proviso contained in s. 120(1)(b)(iii) of the Provincial Offences Act. That section mirrors the proviso contained in s. 686(1)(b)(iii) of the Criminal Code:
- (1) On the hearing of an appeal against a conviction … the court by order,
(b) may dismiss the appeal where,
(iii) although the court is of the opinion that on any ground mentioned in subclause (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.
[22] I note that the provincial offences appeal court judge did not indicate that she was applying the proviso when she made the alternative finding. Nonetheless, in my opinion, the alternative finding made by the provincial offences appeal court judge militates against granting leave to appeal in this case. On the evidentiary record, I am satisfied that it was open to the provincial offences appeal court judge to dismiss the appeal on the basis that no substantial wrong or miscarriage of justice occurred.
[23] As the provincial offences appeal court judge noted, the evidence at trial indicated that this was an extremely busy pulp mill site with extensive truck traffic in the area where the worker was injured. That in itself was sufficient to justify the provincial offences appeal court judge’s conclusion that preparing a traffic protection plan was a reasonable precaution in the circumstances. Given the volume and nature of the traffic, the fact that the job was of brief duration did not displace the necessity of a traffic protection plan.
[24] Further, the fact that the worker was experienced and had, but did not use, the available safety measures supports rather than undermines the conclusion that a traffic protection plan was a reasonable precaution. A written traffic protection plan could only have reinforced the necessity and importance of using appropriate safety measures at all times. Finally, particularly in light of the truck driver’s evidence that he thought the injured worker was at the scale house when the accident occurred, the applicant’s suggestion that the accident was solely the result of rogue driving is mere speculation.
[25] Significantly, as part of her alternative finding, the provincial offences appeal court judge stated that, “[t]he circumstances required a well thought out traffic protection plan [emphasis added].” In my view, this statement indicates that the provincial offences appeal court judge considered that the finding that a traffic protection plan was a reasonable precaution in all the circumstances was inevitable. This implicit conclusion is amply supported by the evidence and justified applying the proviso.
[26] The applicant asserts that leave to appeal should be granted in any event, because this case will otherwise stand for what the applicant asserts is an incorrect proposition of law. I reject this argument. In the absence of a presenting fact situation in which a traffic protection plan may not be a reasonable precaution in the circumstances, I see no basis for holding that it is necessary in the public interest or for the due administration of justice that leave to appeal be granted. If the legal issue raised is theoretical only, it cannot meet the threshold that a decision on the point is “necessary” for any purpose.
Disposition
[27] The request for leave to appeal is denied.
“Janet Simmons J.A.”
Released: June 20, 2008 “JS”