Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13

CITATION: Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13

DATE: 2011-01-07

DOCKET: M38813

COURT OF APPEAL FOR ONTARIO

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen (Ontario Ministry of Labour) and Her Majesty the Queen (Technical Standards and Safety Authority)

Respondents

and

Enbridge Gas Distribution Inc. and Precision Utility Limited

Moving Parties

Counsel:

Cynthia R. C. Sefton and David S. Reiter, for Enbridge Gas

Frank Crewe, for Precision Utility Limited

David R. McCaskill and Alexandra Bednar, for the Ministry of Labour

Thomas Ayres, for the Technical Standards and Safety Authority

Heard: August 26, 2010

On an application for leave to appeal under ss. 131(1) and (2) of the Provincial Offences Act, R.S.O. 1990, c. P. 33 from the decision of Justice Denise E. Bellamy of the Superior Court of Justice on April 14, 2010, allowing an appeal from the judgment of Justice Mary L. Hogan of the Ontario Court of Justice, dated October 25, 2007.

Watt J.A.:

[1] Explosions damage and destroy things. Sometimes, their victims are people. Like here. An explosion damaged and destroyed several buildings. Hurt some people too. And killed others. This explosion was preventable. If only...

[2] A contractor using a backhoe displaced a natural gas pipeline. Natural gas crept into the basement of a two-storey commercial plaza. A source of ignition entered the mix. An explosion and fire followed. Buildings were damaged and destroyed. People were injured. And seven people were killed.

[3] During the year following the explosion, prosecutions under provincial safety legislation began against three companies. The contractor whose employee displaced the pipeline. The utility that owned the pipeline. And a company with which the utility had contracted to provide accurate information to the contractor about the location of pipelines in the area that was to be excavated.

[4] The charges against the companies, contained in separate informations, were tried together. The contractor entered a plea of guilty during the prosecution’s case-in-chief, was ordered to pay a substantial fine and victim fine surcharge, and disappeared from the proceedings.

[5] When the prosecution’s case had been completed, the utility and locator, without indicating whether they proposed to adduce evidence in their own defence, sought dismissal of the charges on several grounds. The trial judge, who characterized the application as a motion for a directed verdict of acquittal, granted the application and dismissed the charges.

[6] The prosecutors appealed the trial judge’s decision to the Superior Court of Justice. A judge of that court allowed the appeal, set aside the dismissals and ordered a new trial on all charges.

[7] The utility and locator seek leave to appeal under ss. 131(1) and (2) of the Provincial Offences Act, R.S.O. 1990, c. P. 33 (POA). For the reasons that follow, leave to appeal is refused.

THE BACKGROUND FACTS

[8] The nature of the proposed grounds of appeal does not command any recapture of the circumstances of the tragic aftermath of the explosion and fire that occurred at a west-end commercial plaza on April 24, 2003. But, to place the proposed grounds of appeal in a setting that befits them, requires a brief sketch of the circumstances that led to the explosion and a bit of procedural history about the prosecution.

The Project

[9] In April 2003, the City of Toronto undertook a major reconstruction of a stretch of Bloor Street West between Kipling Avenue and the East Mall. The project involved replacement of the road surface, curbs and associated storm drains, and sidewalk reconstruction.

[10] The construction zone included the area in front of a two-storey commercial plaza at 3885-3891 Bloor Street West. To remove the existing curb and gutter, as well as the adjacent sidewalk, the excavator used a backhoe.

The Principals

[11] Three companies had a hand in the explosion of April 24, 2003. Each had a different role:

the utility: Enbridge Gas Distribution Inc. (Enbridge) the locator: Precision Utility Limited (PUL) the excavator: Warren Bitulithic Limited (Warren)

[12] Enbridge owns a natural gas distribution system. As a “licence holder” under the Technical Standards and Safety Act, 2000, S.O. 2000, c. 16, (the TSSA Act) Enbridge is licenced to distribute natural gas by the Technical Standards and Safety Authority (TSSA). The TSSA is a not-for-profit safety organization and an agency of the Government of Ontario.

[13] Ontario Regulation 210/01, passed pursuant to the TSSA Act, governs oil and gas pipeline systems. Anyone engaged in an activity, use of equipment, process or procedure to which the Act and Regulation 210/01 apply must comply with the Act and Regulation. Section 9(1) of the Regulation prohibits digging, excavating or breaking ground with mechanical equipment without first ascertaining from the licence holder the location of any pipeline that may be interfered with. Under s. 9(2) of the Regulation, Enbridge, as the licence holder, must provide “as accurate information as possible on the location of any pipeline” within a reasonable time in all the circumstances to anyone involved in excavation activities that may interfere with the pipeline.

[14] To discharge their obligation under s. 9(2) of the Regulation, Enbridge contracted with PUL, a company that provides information to excavators about pipeline locations. The Regulation does not provide a specific form for the information about pipeline locations. The practice in the industry, however, is one of “paint and paper”: paint markings on the surface of the ground plainly visible to excavators and a sketch of the services on paper.

[15] A scheme similar to that imposed by Regulation 210/01 under the TSSA Act is enacted by Regulation 213/91 passed pursuant to the Occupational Health and Safety Act, R.S.O. 1990, c. O. 1 (OHSA). Under s. 228(1)(a) of this Regulation, gas services in and near an area to be excavated must be accurately located and marked before any excavation begins. The employer responsible for the excavation must request the owner of the service to locate and mark the service.

[16] Warren is a road paving and construction company. The City of Toronto contracted with Warren to carry out the road and related reconstruction of Bloor Street West. Thus, Warren was “the employer…responsible for the excavation” under the applicable OHSA Regulation and the “person” involved in the excavation under the governing TSSA Act Regulation.

The Preliminaries

[17] Warren asked Enbridge to identify and mark its underground natural gas pipelines in the area involved in the reconstruction before Warren began excavation. Enbridge contracted with PUL to provide the necessary information for Warren. PUL assigned one of its employees to locate and mark Enbridge’s pipelines in the area affected by the reconstruction.

[18] The PUL employee assigned the task of locating and marking Enbridge’s pipelines in the area affected by the reconstruction neither identified nor marked a three-quarter inch pipeline into the commercial plaza at 3885-3891 Bloor Street West.

The Accident

[19] Warren’s backhoe operator inadvertently struck Enbridge’s unmarked pipeline into the plaza. The displacement dislodged the pipe from its fitting attached to the outside wall of the plaza. An unregulated flow of natural gas escaped into the basement of the plaza.

[20] About six to nine minutes after the pipe had become dislodged, an unknown source of ignition caused the gas to explode. The blast levelled the plaza. The force of the explosion and the ensuing fire damaged or destroyed several structures nearby. Seven people were killed, several more injured.

The Prosecutions

[21] In the year following the explosion, both the Ministry of Labour and the TSSA commenced proceedings against Enbridge and PUL. The TSSA also charged Warren.

[22] The charges against Enbridge and PUL alleged breaches of the OHSA and the TSSA Act and their respective Regulations arising from the failure to locate and mark for Warren the natural gas pipeline into the plaza disrupted by Warren’s backhoe operator. The charges against Warren alleged breaches of the TSSA Act and the Regulation governing gas pipeline systems arising out of Warren’s excavation without proper information about relevant pipeline locations and damage to the pipeline itself.

The Trial Proceedings

[23] At the end of the prosecution’s case-in-chief, counsel for Enbridge and PUL, without electing whether to call evidence in response to the charges, sought an order dismissing all the charges on the ground that the prosecutors had not proven the essential elements of each offence beyond a reasonable doubt.

[24] Enbridge and PUL argued that the prosecution under the OHSA was barred because the information was not laid within the time permitted or required by s. 69 of the Act. Even if the limitations period had not expired, the companies argued, the OHSA imposed no statutory duty on either Enbridge or PUL to provide an accurate “locate”. Neither fell within the scope of the term “employer” within the OHSA, thus were not subject to prosecution under the Regulation. The companies advanced a similar argument about the applicability of the TSSA Act and Regulation, except that no limitations period was applicable to that prosecution.

[25] The application succeeded before the trial judge who dismissed all charges against Enbridge and PUL.

The Appeal to the Superior Court of Justice

[26] The Ministry and TSSA appealed to the Superior Court of Justice. Bellamy J. allowed the appeal, quashed the order dismissing the charges against Enbridge and PUL and ordered a new trial on all charges to be held before a judge other than the judge who had presided at the original trial.

[27] Bellamy J. agreed with the trial judge that s. 69 of the OHSA did not bar the prosecution under that Act. The appeal judge differed from the trial judge on all remaining issues. Bellamy J. concluded that both Enbridge and PUL came within the definition of “employer” in s. 25 of the OHSA. Each had a duty to provide accurate information to Warren about the location and nature of Enbridge’s pipeline and failed to discharge that duty. The failure to provide any information was a failure to provide “as accurate information as possible” under s. 9(2) of the Regulation under the TSSA Act. Enbridge failed to ensure that PUL provided the necessary information to Warren.

THE APPLICATION FOR LEAVE TO APPEAL

[28] Enbridge and PUL seek leave to appeal to a panel of this Court under s. 131 of the POA. In their proposed notice of appeal, Enbridge and PUL raised five grounds of appeal. Four duplicate the grounds raised on the directed verdict application before the trial judge and reiterated before Bellamy J. on the appeal from the dismissal of the charges. What is new and different is a claim that Bellamy J. erred in law in permitting the prosecutors to resile on appeal from positions they had taken at trial and to advance a new basis of liability upon which to obtain a new trial.

[29] Enbridge and PUL also seek leave to appeal from what they contend are errors made by the Superior Court judge in her interpretation of the former s. 228(1) of Ont. Reg. 213/91 under the OHSA and of s. 9(2) of Ont. Reg. under the TSSA Act. The applicants say that the OHSA imposed no duty on them to provide accurate information about pipeline locations and, under the TSSA Act, the failure to provide any information is not the equivalent of provision of inaccurate information. They add that Bellamy J. was wrong to have considered a subsequent amendment to s. 228(1) of Ont. Reg. 213/91 and to have characterized it as a clarification of the former and applicable section.

[30] Enbridge and PUL also seek leave to appeal to re-litigate the applicability of the limitation provisions of s. 69 of the OHSA to the prosecutions under that Act in this case.

THE GOVERNING PRINCIPLES

The Standard for Granting Leave to Appeal

[31] A brief reminder about the principles that govern leave to appeal under s. 131 of the POA and explore the relationship between a prosecutor’s theory of liability and the essential elements of an offence will help to frame consideration of the proposed grounds of appeal.

[32] Enbridge and PUL have no appeal as of right to this court from the decision of a judge of the Superior Court of Justice. They require leave to appeal. To obtain leave to appeal, Enbridge and PUL must meet the demands made on them by ss. 131(1) and (2) of the POA.

[33] Section 131(1) of the POA contains two requirements:

• special grounds • a question of law alone

Both requirements must be met. What constitutes “special grounds” in s. 131(1) is informed by s. 131(2). To determine whether “special grounds” exist, the judge hearing the application must consider all the circumstances of the case and determine whether it is essential

(i) in the public interest; or (ii) for the due administration of justice

that leave to appeal be granted. An applicant need not satisfy both requirements i and ii. Satisfaction of either will do.

[34] The threshold for granting leave to appeal is very high: R. v. Zakarow (1990), 1990 CanLII 6991 (ON CA), 74 O.R. (2d) 621 (C.A. - Ch’rs), at p. 625; R. v. Krukowski (1991), 1991 CanLII 7305 (ON CA), 2 O.R. (3d) 155 (C.A. -Ch’rs), at p. 159. The clear import of the provisions of ss. 131(1) and (2) of the POA is that the decisions of the Superior Court of Justice, in its appellate capacity, are intended to be final in the overwhelming majority of cases: Krukowski at p. 159. Reviews of decisions of the Superior Court of Justice are limited to exceptional cases where the resolution of a question of law alone may have an impact on the jurisprudence in a way that is of interest to the public at large, or at least a broad segment of it: Krukowski at pp. 159-160.

[35] Demonstration of error in the judgment below, without more, does not satiate the demands of ss. 131(1) and (2). The other criteria of the subsections must be met. The error must involve a question of law alone, not a question of fact or of mixed fact and law: Krukowski at p. 159; R. v. Rankin (2007), 2007 ONCA 127, 216 C.C.C. (3d) 481 (Ont. C.A. - Ch’rs), at para. 30. The resolution of the questions of law in the circumstances must be essential in the public interest (not merely the interest of the litigants), or for the due administration of justice: Zakarow at pp. 625-626.

[36] Grounds of appeal that raise issues of statutory interpretation often have application beyond the factual idiosyncrasies of individual cases. But simply phrasing the proposed ground of appeal as a question of statutory interpretation is not an open sesame to leave to appeal. The subject-matter of the statute, as well as the nature and extent of its influence on our daily activities, is of importance: Zakarow at p. 626. The influence of the statute must be such that its interpretation rises to the threshold of “essential in the public interest” or “essential…for the due administration of justice”: Zakarow at p. 626.

[37] Another appropriate factor of which to take cognizance in deciding about leave to appeal is whether the proposed ground of appeal involves a matter of first impression or the application of well-established principles to the facts of the case: Rankin at para. 33.

[38] Despite the generality of the language of s. 839(1) of Criminal Code which stands in stark relief to the specificity of ss. 131(1) and (2) of the POA, the decision of this Court in R. v. R. (R.) (2008), 2008 ONCA 497, 234 C.C.C. (3d) 463 identifies two factors that can inform the meaning to be assigned to the touchstones in s. 131 — the significance of the proposed question of law to the administration of justice in the province, and the strength of the proposed grounds of appeal: R. (R.) at paras. 30 and 37.

The Prosecution “Theory”, Particulars, and Proof of Guilt

[39] Every offence, whether its origins are criminal or regulatory, contains its own essential elements. A finding of guilt of any offence may only be made if the prosecutor establishes each essential element in the offence to the degree required by the applicable standard of proof. To survive an application for a directed verdict of acquittal or a non-suit at the conclusion of its case-in-chief, the prosecution must introduce some evidence on the basis of which a reasonable trier of fact, properly instructed, could find guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 1, 21 and 26. Where the evidence adduced on an essential element or as a whole is circumstantial, a judge on a motion for a directed verdict or non-suit must engage in a limited weighing of the whole of the evidence to determine whether a reasonable trier of fact, properly instructed, could return a finding of guilt: Arcuri at paras. 29-30.

[40] The legal standard of proof, proof beyond a reasonable doubt, has no direct application on a motion for non-suit or a directed verdict of acquittal at the end of the prosecution’s case-in-chief.

[41] In any prosecution, what the prosecutor must prove beyond a reasonable doubt are the essential elements of the offence as charged and particularized in the charging document. The prosecutor is bound by any particulars, voluntarily supplied or court ordered, subject to any rights of amendment that may exist under the governing procedural law and the doctrine of surplusage: R. v. Cox and Paton, 1963 CanLII 78 (SCC), [1963] S.C.R. 500, at p. 511.

[42] In any prosecution, the prosecutor will have a “theory” of the case, usually expressed in opening and closing submissions or addresses. But the prosecutor’s “theory” of the case is not something that the prosecutor is bound to prove in order to establish guilt. The prosecutor’s “theory” is neither an essential element of the offence, nor a “particular” voluntarily supplied: R. v. Groot (1998), 1998 CanLII 2151 (ON CA), 129 C.C.C. (3d) 293 (Ont. C.A.), at paras. 14-18; R. v. Govedarov (1974), 1974 CanLII 33 (ON CA), 16 C.C.C. (2d) 238 (Ont. C.A.), at pp. 270-71, aff’d 1975 CanLII 30 (SCC), [1976] 2 S.C.R. 308. The prosecutor is bound to prove the essential elements of the offence as charged beyond a reasonable doubt. Nothing more. Nothing less. See, R. v. Largie (2010), 2010 ONCA 548, 258 C.C.C. (3d) 297 (Ont. C.A.), at paras. 158 and 165.

[43] The prosecutor may modify his or her “theory” or strategy as the trial progresses: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 19. Trial fairness considerations may intervene and foreclose advancement of an alternative basis of liability inconsistent with the way the parties have conducted their cases throughout: Largie at para. 161; R. v. Ranger (2003), 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1 (C.A.), at para. 162.

[44] The flexibility that permits the prosecutor to adjust his or her trial strategy to meet new or changing circumstances during the trial does not entitle the prosecution to shift ground on an appeal from acquittal. The prosecutor is not entitled to advance a new theory of liability on an appeal from acquittal, nor to raise arguments on appeal upon which the prosecution chose not to rely at trial: R. v. Varga (1994), 1994 CanLII 8727 (ON CA), 90 C.C.C. (3d) 484 (Ont. C.A.), at p. 494; Wexler v. The King, 1939 CanLII 41 (SCC), [1939] S.C.R. 350, at pp. 353-54 and 356-57; Savard and Lizotte v. The King, 1945 CanLII 37 (SCC), [1946] S.C.R. 20, at pp. 33-34; 37; and 49.

The Principles Applied

[45] Each of the proposed grounds of appeal requires separate consideration.

Ground #1: The Shifting Prosecution “Theory”

[46] The first proposed ground of appeal seeks review of what is alleged to be a change in the prosecutor’s “theory” of the applicants’ liability between trial and appeal. To some extent this complaint is rooted in the interpretation of the provisions of s. 228(1) of Ont. Reg. 213/91 adopted by the appeal judge. That said, I will consider whether this proposed ground warrants leave to appeal independently of any argument about statutory interpretation.

[47] I would not grant leave to appeal on this proposed ground. My reasons are several.

[48] First, it is by no means clear that the basis of liability advanced by the prosecutor on the appeal from the dismissal of the informations amounted to a new “theory” of liability or advancement of an argument that the prosecutor chose not to put forward at trial. In other words, the factual substratum essential to found this argument is, at best, controversial.

[49] Second, the principles involved in the proposed ground of appeal are well-settled, beyond dispute at least since the decision in Wexler over 70 years ago. Their application to the circumstances of this case involves a question of mixed law and fact, thus falls outside the reach of s. 131(1) of the POA.

[50] Third, even assuming that what is proposed as a ground of appeal raises a question of law in the strict sense, it is not one that is likely to have an impact on firmly established jurisprudence in a way that is of general interest to a broad segment of the public.

[51] And finally, it is unclear whether the applicants’ response before the appeal judge raised this issue upon which they now seek leave to appeal.

Ground #2: The Interpretation of Regulation 213/91 under the OHSA

[52] This proposed ground of appeal raises an issue of statutory interpretation of the former and current provisions of s. 228(1) of Ont. Reg. 213/91 passed pursuant to the OHSA.

[53] The trial and appeal judge disagreed on whether the former s. 228(1) applied to the excavator, Warren, only, or extended to Enbridge and PUL. The applicability of s. 228(1) to Enbridge and PUL, according to the applicants, depends upon whether each is an “employer” under the OHSA.

[54] Section 228(2) of the former Regulation by which liability is governed in this case required Warren to request Enbridge, as owner of the service, to locate and mark the service before excavation began. Enbridge contracted with PUL to locate and mark the service. The requirement of s. 228(2) that Warren request the owner, Enbridge, to locate and mark the service necessarily implies a duty on Enbridge, as owner, to do so. Were it otherwise, the service would not be located and marked since only the owner has the authority to do so. Enbridge plainly recognized this duty: it retained PUL to carry it out. By contracting with PUL to supply services, Enbridge became an “employer” under the Act. Likewise, PUL is a contractor who undertook with the owner, Enbridge, to perform work or supply services. Thus, PUL is an “employer” under the Act.

[55] This proposed ground does not warrant granting leave to appeal. My reasons are threefold.

[56] First, the provisions of s. 228(1) of the Regulation under which this case was prosecuted are no longer in force. No other prosecutions under this version of the Regulation remain outstanding. It follows that the issues raised about its interpretation here do not extend beyond the borders of this case. To grant leave to appeal in the circumstances is not essential in the public interest or for the due administration of justice.

[57] Second, the interpretation of the new s. 228(1) is not ripe for decision in this case. The new provision does not apply to this prosecution. Its interpretation can await a prosecution in which liability falls to be decided in accordance with its terms. Nor is there any pressing need to offer gratuitous advice about the relationship between the current and former provisions.

[58] Third, the interpretation imposed upon the former provisions by the appeal judge is neither obviously wrong nor of doubtful correctness. Indeed, the practical effect of the contrary interpretation favoured by the trial judge yields a result that is antithetical to the legislative purpose of the OHSA – protection of workers from preventable harm.

Ground #3: The Limitations Bar of s. 69 of the OHSA

[59] The applicants also seek leave to appeal on the applicability of s. 69 of the OHSA, a limitations provision, to the prosecution under the OHSA. Upon this issue, the trial and appeal judges were in agreement: s. 69 did not bar the prosecution.

[60] This proposed ground of appeal does not warrant leave to appeal. Three factors inform my decision.

[61] To begin, whether a limitations provision applies to bar a particular prosecution, as in this case, has no resonance for the general administration of justice. Of surpassing importance to the individual litigants, an appellate pronouncement on this issue is not essential either in the public interest or for the due administration of justice. Readily accessible precedent is abundant.

[62] Next, I consider it highly doubtful whether the applicability of s. 69 of the Act to these circumstances involves a question of law alone as s. 131(1) of the POA requires. What would be involved, at least as it seems to me, would be, at best, a question of mixed fact and law: Krukowski at p. 159.

[63] Further, the interpretation rendered by both judges below is consistent with the purpose underlying the governing legislation, the protection of workers in their workplace, as well as controlling precedent.

Ground #4: The Interpretation of s. 9(2) of the TSSA Regulation 210/01

[64] Section 9(2) of Ont. Reg. 210/01, passed pursuant to the TSSA Act, imposes an obligation on a licence holder, like Enbridge, to provide “as accurate information as possible” about the location of any pipeline. The information must be provided within a reasonable time in all the circumstances. Neither the Regulation nor the statute insists upon completion of a specific form to provide the required information. Industry practice involves both “paint”, visible location and directional marks on the surface to be excavated, and “paper”, a drawing or diagram that identifies the location.

[65] The Regulation also imports a duty on an excavator, in this case, Warren. Before digging, the excavator must ascertain from the licence holder (Enbridge) the location of any pipeline with which the excavation may interefere.

[66] The effect of the Regulation is to impose correlative duties on the licence holder and the excavator. To provide information, “as accurate information as possible”, about the location of the pipeline. And to ascertain, from information provided, the location of the pipeline.

[67] The trial and appeal judge reached different conclusions about whether the statutory duty to provide information applied to Enbridge and PUL and was breached by a failure to provide any information, as opposed to provision of inaccurate information.

[68] Setting to one side whether this issue was properly cognizable on an application for a directed verdict at the end of the prosecutor’s case-in-chief, I would not grant leave to appeal on this ground.

[69] Although the issue raised in the proposed ground of appeal involves the interpretation of a statute concerned with workplace safety, the statute is not one with which the general public has daily involvement. As the name of the statute attests, the enactment is concerned with technical standards to ensure workplace safety in a narrow context.

[70] Further, the proposed ground of appeal does not raise an issue of general importance that takes it beyond the singular facts of this case into the category of “special grounds”, either as “essential in the public interest” or “essential for the due administration of justice”.

[71] Finally, the interpretation given by the appeal judge is consistent with the plain meaning of the terms of the statute and Regulation and, unlike that adopted by the trial judge, does not leave an obvious but unnecessary lacuna in the legislation.

CONCLUSION

[72] In the result, the application for leave to appeal is dismissed and leave to appeal refused.

RELEASED: January 7, 2011 “David Watt J.A.”