Her Majesty the Queen in Right of Ontario (Ministry of Labour) v. Modern Niagara Toronto Inc. [Indexed as: Ontario (Ministry of Labour) v. Modern Niagara Toronto Inc.]
91 O.R. (3d) 774
Court of Appeal for Ontario,
Rosenberg, Armstrong and Watt JJ.A.
August 18, 2008
Criminal law -- Provincial offences -- Appeals -- Appeals by Crown -- Appellant acquitted on charges under Occupational Health and Safety Act -- Provincial Offences Appeal Court allowing Crown's appeal -- Appeal judge permitting Crown to rely on new theory of liability to overturn acquittals -- Appeal judge also raising an issue dispositive of appeal in favour of Crown which was not raised during the appeal, and appellant first learning of additional issue when reasons for allowing Crown appeal were released -- Improper to permit Crown to rely upon new basis of liability on appeal from acquittal and judge should have permitted accused to make submissions about additional issue judge raised on her own motion -- Appellant denied fair hearing in Provincial Offences Appeal Court -- Appellant's appeal allowed.
The appellant was charged with four offences under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA"). The justice of the peace found that the actus reus of two of the offences was not made out, and that the appellant had made out the due diligence or reasonable mistake of fact defence to the other two offences. The Crown successfully appealed the acquittals to the Provincial Offences Appeal Court. The appeal judge permitted the Crown to rely on a new theory of liability, arguing that a worker, M, was a supervisor, so the appellant was liable for his acts pursuant to s. 66(4) of the OHSA. In addition, in her reasons, the appellant learned for the first time that the appeal judge was relying on additional grounds that she raised on her own motion and which were dispositive of the appeal in favour of the Crown. The appellant appealed.
Held, the appeal should be allowed.
The Crown's notice of appeal to the Provincial Offences Appeal Court did not raise the question of whether M, a worker, was a supervisor for the purposes of OHSA. The first real notice that the appellant had of its potential liability under s. 66(4) of the OHSA for M's acts came in the Crown's factum to the appeal court. In a Crown appeal against acquittal, it was improper to permit the Crown to rely upon a theory of liability not advanced at trial.
In her reasons for judgment, the appeal judge raised two other grounds of appeal that were not argued on the appeal: whether there was a procedure in place that met the objectives of the OHSA; and whether another worker, J, was a supervisor. The first point that the appeal court judge said she was raising for the first time was dealt with at length by the justice of the peace. It was for the appeal judge to determine whether the justice of the peace erred in holding that there was a safe procedure in place. The issue of whether J was a supervisor was not argued at trial or on the appeal. As a result, the appellant was unfairly denied an opportunity to make submissions as to the consequence of a finding that J was a supervisor.
A new trial was necessary. The errors by the appeal judge with respect to the new theory of liability infected her assessment of the due diligence defence. It [page775] could not be said that the appeal judge would necessarily have reached the same conclusions on liability in the absence of her errors.
APPEAL from a judgment of Lane J., [2006] O.J. No. 3864, 70 W.C.B. (3d) 641 (C.J.), allowing an appeal from Quon J.P., [2003] O.J. No. 3332 (C.J.).
Cases referred to
R. v. Elms (2006), 2006 CanLII 31446 (ON CA), 82 O.R. (3d) 415, [2006] O.J. No. 3635, 216 O.A.C. 112, 217 C.C.C. (3d) 217, 41 C.R. (6th) 359, 72 W.C.B. (2d) 128 (C.A.); R. v. London Excavators & Trucking Ltd. (1998), 1998 CanLII 3479 (ON CA), 40 O.R. (3d) 32, [1998] O.J. No. 6437, 110 O.A.C. 94, 125 C.C.C. (3d) 83, 38 W.C.B. (2d) 328 (C.A.); R. v. Wexler, 1939 CanLII 41 (SCC), [1939] S.C.R. 350, [1939] S.C.J. No. 22, [1939] 2 D.L.R. 673, 72 C.C.C. 1
Statutes referred to
Occupational Health and Safety Act, R.S.O. 1990, c. O.1, ss. 25(1)(c), (2), 66(4) Provincial Offences Act, R.S.O. 1990, c. P.33
Authorities referred to
Construction Projects, O. Reg. 213/91, s. 48(1)(a)
Peter W. Kryworuk and Andrew C. Murray, for appellant. Brian A. Blumenthal, for respondent. Norman A Keith and Goldie G. Bassi, for intervenor, Mechanical Contractors Association of Ontario Ltd.
[1] BY THE COURT: -- This appeal under the Provincial Offences Act, R.S.O. 1990, c. P.33, raises a question of appellate procedure under that Act. The appellant Modern Niagara Toronto Inc. was acquitted by Quon J.P. on four charges contrary to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. The justice of the peace found that the actus reus of two of the offences was not made out. He found that the appellant had made out the due diligence or reasonable mistake of fact defence to the other two offences.
[2] The Crown successfully appealed to the Provincial Offences Appeal Court. Lane J. found the appellant guilty on three of the counts and imposed a fine of $135,000. [See Note 1 below] On that appeal, the Crown was permitted to rely on a new theory of liability to overturn the acquittals. In addition, the appeal judge stated that she was raising two new issues that were dispositive of the appeal in favour of the Crown. The appellant first learned of these new issues when the appeal judge released her reasons. [page776]
[3] In granting special leave to appeal to this court, MacPherson J.A. stated: "There is a fundamental issue of fairness raised by the way in which the appeal judge heard and determined the appeal."
[4] In our view, the appellant was denied a fair hearing of its appeal in the Provincial Offences Appeal Court. While the appellant raises other issues, the fair hearing issues are sufficient to dispose of the matter. We would allow the appeal and remit the matter to the Provincial Offences Appeal Court for a new hearing before a different judge.
The Facts
[5] In light of our disposition of the case, we only outline so much of the facts as are necessary to understand the issues upon which disposition of the appeal turns.
[6] The appellant is a mechanical contractor that installs heating and cooling systems in commercial buildings. In October 2000, the appellant was engaged to install a supplementary cooling system at First Canadian Place in Toronto. Prior to completing the installation, the new system was pressurized with nitrogen gas to test for leaks. Martin Maurer, an experienced journeyman steamfitter, applied the pressure test. As part of the test procedure, all of the valves within the system were opened so that the complete system could be tested. Ordinarily, the pressure test is kept on for at least 24 hours. When the test equipment is installed on the system, it is highly visible, and it was the defence evidence that the standard in the industry at the time was that this was sufficient to warn anyone working on the system.
[7] In this case, the test was left on for about two weeks because Maurer was called away to another job in Mississauga. About a week and a half after the test was applied, Maurer and Francesco Conti (the injured worker), an experienced journeyman welder, attended at the work site to install an additional bypass to the heat exchanger. Because the test equipment was interfering with the new installation, Maurer allowed Conti to disconnect it. At the end of the day, the test equipment was not reinstalled. Thus, there was no visible sign that the new installation was under pressure. Maurer and Conti were to return within a few days to complete the bypass installation. The evidence seems relatively clear that Maurer did not expect anyone else to be working on the site in the meantime.
[8] However, two days later, David Johnstone, the appellant's project manager, attended at the work site in response to a call from the building's maintenance staff about water leakage. [page777] Johnstone and another employee made a temporary repair to stop the leak. In the course of doing so, they closed some of the valves of the new supplementary cooling system. Since the test equipment was not in place, Johnstone assumed that the pressure test had been completed and that the system was no longer under pressure.
[9] The following morning, Maurer and Michael Rollo, an experienced journeyman plumber, attended at the work site to complete the installation of both the supplementary cooling system and the bypass. Conti was to arrive later to do the necessary welding. Johnstone was not on the site, but he spoke to Rollo on the telephone and told him about the leak and the work he had done to deal with it, including closing some valves. The evidence is conflicting as to whether Rollo passed on to Maurer that Johnstone had closed some valves. At some point, Rollo found some trapped gas in the supplementary cooling system and released it. Maurer heard the release of gas and it was his evidence that he assumed that all of the gas had been drained from the system, even though it was his responsibility to remove the gas. In fact, because Johnstone had closed some of the valves, gas was still trapped in part of the system.
[10] When Conti arrived, he and Maurer began to remove a cap from the supplementary cooling system. As they did so, the cap blew off and seriously injured Conti. The cap blew off because gas was still trapped in the part of the system they were working on.
The Charges
[11] As a result of the accident, the appellant was charged with four offences contrary to the Occupational Health and Safety Act as follows: (1) Failing to provide information, instruction and supervision to a worker contrary to s. 25(2)(a) by not informing the worker that there was pressurized gas in the pipe; (2) failing to acquaint a worker with a hazard contrary to s. 25(2)(d) by failing to acquaint the worker with the hazard of pressurized gas in the pipe; (3) failing to ensure that the measures and procedures prescribed by s. 48(1)(a) of the O. Reg. 213/91 were carried out contrary to s. 25(1)(c) by not releasing the pressure in the pipe; and (4) failing to take every precaution reasonable in the circumstances for the protection of a worker contrary to s. 25(2)(h) [page778] by failing to have a procedure in place to ensure that all pipes were depressurized before work was performed on them.
The Decision of the Justice of the Peace
[12] The justice of the peace found that while the actus reus of count #1 was made out, the appellant had established the defence of due diligence. He held that the procedure for testing leaks is routinely performed; the workers on the project were all experienced and knew the procedure well. They had been trained in the procedure as part of their apprenticeship and did not need to be expressly trained on it by the employer. The procedure used by the appellant was standard in the industry and was adequate to prevent the occurrence. The accident occurred because of Maurer's error in judgment when he deviated from standard operating procedure by removing the test equipment without depressurizing the system. He also held that the accident was not reasonably foreseeable. The justice of the peace found that the appellant was entitled to rely on the training its experienced journeyman steamfitters and plumbers had received and that it was operating in accordance with the industry standard. The appellant had therefore taken all reasonable precautions in the circumstances to avoid the prohibited act.
[13] The justice of the peace also found that the reasonable mistake of fact defence was made out. He held that it was reasonable in the circumstances for the appellant, through the project manager Johnstone, to mistakenly believe that the system had been depressurized.
[14] The justice of the peace found that the actus reus of count #2 had not been made out. The evidence established that Conti was well aware of the hazard of pressurized gas in the pipe. In particular, he was with Maurer when the test apparatus had been removed and the pipe not depressurized.
[15] As to count #3, the justice of the peace found that the actus reus was established but that due diligence and reasonable mistake of fact were made out for much the same reasons as dealt with under count #1.
[16] Finally, as to count #4, the justice of the peace found that there was a safe procedure in place to depressurize pipes before work was performed on them and thus the Crown had not established the actus reus of the offence. This unwritten procedure was standard in the industry, well known and a basic skill used by the appellant's workers. The procedure was routinely followed by the workers and was adequate to prevent any harm. The method [page779] used is part of the fundamental knowledge of experienced journeyman workers. The employer is "not automatically required to train or instruct its experienced employees in a procedure already well known by them", unless the procedure is clearly inadequate or inherently unsafe. Since the procedure in place was safe and adequate to protect the workers, no special training or instruction was required.
The Decision of the Appeal Judge
[17] The appeal judge listed a number of issues on the appeal, including whether an employer can establish due diligence by relying on work experience and apprenticeship training alone, whether Maurer was a supervisor so that his acts can be attributed to the appellant and whether the mistake of fact defence could be made out solely on the basis of Johnstone's knowledge. The appeal judge then wrote as follows, at para. 18:
I would add two additional issues not argued on the appeal. 1) Whether there was a "procedure in place" for depressurizing pipes that met the objectives of the OHSA? 2) Whether there was any action or neglect by Johnstone that must be attributed to Modern Niagara?
[18] The appeal judge conducted an extensive review of the evidence. She held that the justice of the peace misapplied the law and made palpable and overriding errors of fact. Accordingly, she made her own findings of fact based on her review of the evidence and concluded that the actus reus was made out on counts #1, 3 and 4 and that the due diligence and reasonable mistake of fact defences failed in relation to them. The acquittal on count #2 was not appealed.
Analysis (1) The issue of Maurer as supervisor
[19] The appellant submits that the appeal judge erred in permitting the Crown to argue for the first time on appeal that the appellant was liable for Maurer's acts pursuant to s. 66(4) of the Occupational Health and Safety Act. That section provides that "any act or neglect on the part of any manager, agent, representative, officer, director or supervisor of the accused . . . shall be the act or neglect of the accused". This issue was not raised in the Crown's opening at trial. To the contrary, in his submissions Crown counsel's only reference to "the defendant's supervisor" was obviously to Johnstone. The other persons involved were referred to as the "three workers". Crown counsel also did not suggest that Maurer was a supervisor in his closing submissions. [page780] Crown counsel raised the issue of the company being liable because Maurer was a supervisor for the first time in his closing reply submissions and only in passing and without reference to s. 66(4).
[20] The issue of Maurer as a supervisor was barely touched on in his testimony. Maurer testified that he was a foreman for the company. Crown counsel asked him to describe what a foreman is. Maurer testified that he supervised other workers and that the number of men he supervised depended on the size of the job, but usually it was two of them. Crown counsel then asked Maurer if he was able to discipline workers. He said he could not and was even unclear who did have responsibility, although he guessed that Johnstone did have power to discipline. After that exchange, Crown counsel did not return to the question of Maurer's responsibilities as a supervisor. In cross- examination, Maurer testified that Johnstone gave him overall responsibility for the project to make sure the work was done and he could give instructions to the other workers which they would be expected to follow.
[21] The issue of Maurer as supervisor under the Act was also not raised with Johnstone, the project manager. Finally, Robert Silberstein, the appellant's president, testified in chief that a foreman was empowered to discipline a member of his workforce if he identified any safety problems. In cross-examination, Crown counsel confirmed this aspect of Silberstein's testimony but otherwise did not touch on the question of Maurer as a supervisor within the meaning of the Act.
[22] The justice of the peace did not deal with the issue of the appellant's liability on the basis that Maurer was a supervisor. This is not surprising given the oblique way in which the issue was raised by Crown counsel for the first time in his reply submissions. The issue was not raised in the Crown's notice of appeal to the Provincial Offences Appeal Court. The first real notice that the appellant had of its potential liability under s. 66(4) for Maurer's acts came in the Crown's factum to the appeal court. The appeal judge nevertheless allowed the Crown to raise the issue and she held at para. 45 of her reasons that "[t]he acts or neglects on Maurer's part, under s. 66(4) of the OHSA, must be attributed to the respondent".
[23] In our view, the Crown should not have been permitted to rely upon s. 66(4) in relation to Maurer. In R. v. Elms (2006), 2006 CanLII 31446 (ON CA), 82 O.R. (3d) 415, [2006] O.J. No. 3635, 217 C.C.C. (3d) 217 (C.A.), the accused had been acquitted of 15 counts of wilful promotion of hatred. On a Crown appeal, the summary conviction appeal court overturned the acquittal on the basis of a theory of liability that had not been advanced at trial. On further appeal, this court [page781] restored the acquittal because it was not open to the Crown to advance a new theory of liability for the first time on appeal. Juriansz J.A. writing for the court, held as follows, at para. 29:
In my view, it would offend the rule against double jeopardy to dismiss the appeal based on a new theory that the charges relate to the contents of the covers and not the CDs and lyric sheets. The comments of Doherty J.A. in R. v. Varga (1994), 1994 CanLII 8727 (ON CA), 90 C.C.C. (3d) 484 (Ont. C.A.) at 494 are apposite:
A Crown appeal cannot be the means whereby the Crown puts forward a different case than the one it chose to advance at trial. It offends double jeopardy principles, even as modified by the Crown's right of appeal, to subject an accused, who has been acquitted, to a second trial based on arguments raised by the Crown for the first time on appeal.
[24] In our view, these comments apply to this case. It was unfair to permit the Crown to rely upon Maurer as a supervisor for the first time on appeal, when the appellant had no notice this was an issue at trial, the matter was not canvassed in the evidence and raised only obliquely in reply argument. A Crown appeal is not the time for the prosecution to advance a new theory of liability: see also R. v. Wexler, 1939 CanLII 41 (SCC), [1939] S.C.R. 350, [1939] S.C.J. No. 22, 72 C.C.C. 1. The appeal judge held that her findings that Maurer and Johnstone were supervisors "are conclusive of this appeal". She held that in the result the due diligence defence was not available and the appellant was to be convicted on counts #1 and 3. (2) Grounds of appeal raised by the appeal judge
[25] In her reasons for judgment, the appeal judge raised two other grounds of appeal that were not argued on the appeal. (a) The issue of a procedure in place
[26] The first was whether there was a "procedure" in place that "met the objectives of the OHSA". The appellant submits that this was a new issue and it was not given an opportunity to respond to it. We do not agree, and would not have allowed the appeal if this were the only issue.
[27] It is not entirely clear why the appeal judge characterized this as a new issue. The question of whether there was a procedure in place was central to the question of the actus reus in count #4. Count #4 charged that the appellant failed as an employer to take every precaution reasonable in the circumstances for the protection of a worker. The lack of precaution was particularized as follows [at para. 3]:
The accused had failed to take the precaution of having a procedure in place to ensure that all pipes were depressurized before work was performed on them. [page782]
[28] The justice of the peace dealt with this issue at length. He found that "there was a safe procedure in place to depressurize pipes before work was to be performed on them, although it had not been in written form". He also held that the procedure was "routinely followed by [Modern Niagara's workers] and was adequate in preventing any harm to its workers". The appeal judge held, at para. 56, that this was "a palpable and overriding error in fact and law". In her view, the appellant had no procedure in place that was safe and adequate, and thus [at para. 65], "By definition, such a procedure amounted to none [at] all."
[29] The question of whether the actus reus was made out was also raised in the Crown's notice of appeal in the Provincial Offences Appeal Court. As we understand it, the appellant argues that the new issue was the appeal judge's view that any procedure had to comply with the objectives of the Act. However, we agree with the Crown that if the procedure was not safe and adequate it could not be said that the employer had complied with its duty to take every reasonable precaution as required by s. 25(2)(h) of the Act.
[30] As we have said, this was not a new issue raised for the first time on appeal; the justice of the peace himself dealt with the question at length. It will be for the judge hearing the appeal to determine whether the justice of the peace erred in holding that there was a safe procedure in place. (b) The issue of Johnstone as supervisor
[31] In allowing the Crown appeal, the appeal judge also relied upon her finding that Johnstone was a supervisor. This issue was not argued at trial or on the appeal. The appellant first learned that this was an issue in the case when the appeal judge's reasons for judgment were released.
[32] In and of itself, the issue of Johnstone as a supervisor was not a new issue, as the undisputed evidence clearly established that Johnstone was a supervisor. The issue is therefore different from the question of Maurer as a supervisor. The problem is that because the issue was not argued on the appeal, the appellant had no opportunity to make submissions as to the consequence of a finding that Johnstone was a supervisor. One example will suffice to illustrate the unfairness.
[33] The justice of the peace found that on the morning of the accident, Johnstone gave instructions to Maurer, through his conversation with Rollo, to check everything out, including the valves in the supplementary cooling system. The justice of the peace relied partly on this finding to hold that the company had [page783] exercised due diligence. The appeal judge held that the justice of the peace had misinterpreted the evidence. She made her own finding of fact that Johnstone's order did not relate to pressure in the system but to the problem of the water leak that Johnstone had dealt with the day before. In our view, it is arguable that the appeal judge misinterpreted the evidence and that the justice of the peace had correctly interpreted the evidence. Unfortunately, because the appeal judge raised the issue on her own she did not have the benefit of submissions on the issue. The failure to provide the appellant with the opportunity to make submissions on this issue deprived it of a fair hearing at the appeal. (3) Should there be a new hearing
[34] The respondent argues that even if there were procedural errors in the conduct of the appeal hearing, the appeal should be dismissed, because those errors did not taint the other findings of the appeal judge which were an adequate basis for entering convictions. In particular, after making the findings concerning Johnstone and Maurer as supervisors and the issue of a procedure in place, the appeal judge went on to consider the justice of the peace's analysis of the due diligence defence, an issue that was central to the trial and the appeal.
[35] In our view, this submission cannot succeed because the errors by the appeal judge with respect to the new theory of liability infected her assessment of the due diligence defence. For example, at paras. 88-89, she appears to analyze the defence of due diligence on the assumption that Maurer was a supervisor. In this regard, she held [at para. 89] that the decision in R. v. London Excavators & Trucking Ltd. (1998), 1998 CanLII 3479 (ON CA), 40 O.R. (3d) 32, [1998] O.J. No. 6437, 125 C.C.C. (3d) 83 (C.A.) was directly applicable and "reinforces my previous finding that Maurer was a aesupervisor' within the meaning of the OHSA". We are not convinced that an appeal court would necessarily have reached the same conclusions on liability in the absence of the errors discussed above. Disposition
[36] Accordingly, we would allow the appeal, set aside the conviction on count #3 and the findings of guilt on counts #1 and 4 and remit the matter to the Provincial Offences Appeal Court for a rehearing of the Crown appeal.
Appeal allowed.
Notes
Note 1: The appeal judge entered a conviction on count #3 and stayed counts #1 and 4 in accordance with the rule in Kienapple.