Court File and Parties

CITATION: R. v. Sheehan's Truck Centre Inc., 2011 ONCA 170

DATE: 20110302

DOCKET: M39591

COURT OF APPEAL FOR ONTARIO

Lang J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Responding Party

and

Sheehan’s Truck Centre Inc.

Moving Party

Daniel J. Michaluk, for the moving party

Rajesh Dhir and Jessica Eisen, for the responding party

Heard: February 25, 2011

On a motion for leave to appeal the judgment of Justice Alan D. Cooper of the Ontario Court of Justice, dated December 22, 2010 allowing an appeal from the judgment of Justice of the Peace Paul Macphail of the Ontario Court of Justice, dated August 18, 2009.

ENDORSEMENT

[1] The applicant seeks leave to appeal pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33, which provides that leave to appeal may be granted on “special grounds, upon any question of law alone”, but that leave shall not be granted unless it is “essential in the public interest or for the due administration of justice”.

[2] In this case, a worker was seriously injured when his co-worker reversed a truck over part of his body. The workers’ employer, the applicant, was charged for its failure to provide a “signaller” to guide the truck’s reversal. The charge was laid pursuant to s. 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 for the breach of the prescription contained in section 56 of Industrial Establishments, R.R.O. 1990, Reg. 851.

[3] Section 25(1)(c) of the Occupational Health and Safety Act requires an employer to ensure that “the measures and procedures prescribed are carried out in the workplace”. Section 56 of the applicable Regulation governs all industrial establishments in Ontario. It prescribes when a signaller must be provided:

Where the operator of a vehicle, mobile equipment, crane or similar material handling equipment does not have a full view of the intended path of travel of the vehicle, mobile equipment, crane or similar material handling equipment or its load, the vehicle, mobile equipment, crane or similar material handling equipment shall only be operated as directed by a signaller who is a competent person and who is stationed,

(a) in full view of the operator;

(b) with a full view of the intended path of travel of the vehicle, mobile equipment, crane or similar material handling equipment and its load; and

(c) clear of the intended path of travel of the vehicle, mobile equipment, crane or similar material handling equipment and its load.

[4] At first instance, the justice of the peace acquitted the applicant based largely on his interpretation that section 56 applied only if the vehicle was engaged as material handling equipment at the time of the accident. On appeal, the Ontario Court of Justice appeal judge allowed the appeal, concluding that the legislation required a liberal interpretation to include the vehicle in question and that the legislative provision was not overbroad. He found the applicant guilty.

[5] The applicant argues that leave should be granted on two issues. First, regarding the correct interpretation of s. 25(1)(c) of the Occupational Health and Safety Act, and section 56 of the Industrial Establishments Regulation. In particular, the interpretive question focuses on the circumstances in which a “signaller” is required for a “vehicle, mobile equipment, crane or similar material handling equipment”. Second, the applicant takes the position, arising from the proper interpretation, that section 56 is unconstitutionally overbroad.

[6] In my view, the proper interpretation of this legislative provision raises issues important to the public interest’s interest in occupational safety at the workplace. Accordingly, I am satisfied that leave is essential in the public interest: see R. v. Krukowski (1991), 1991 CanLII 7305 (ON CA), 2 O.R. (3d) 155 (C.A.); Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 CanLII 16893 (ON CA), 58 O.R. (3d) 37 (C.A.); R. v. Rankin (2007), 2007 ONCA 127, 216 C.C.C. (3d) 481 (Ont. C.A.).

[7] Leave is granted on the two “Grounds for Appeal” set out in the applicant’s notice of motion for leave to appeal.

[8] Costs of the leave motion, if any, are left to the panel hearing the appeal.

“S.E. Lang J.A.”