Her Majesty the Queen in Right of Ontario (Ministry of Labour) v. Black & McDonald Limited et al. [Indexed as: Ontario (Ministry of Labour) v. Black & McDonald Ltd.]
106 O.R. (3d) 784
2011 ONCA 440
Court of Appeal for Ontario,
Laskin, Rosenberg and Epstein JJ.A.
June 9, 2011
Employment -- Occupational health and safety -- Offences -- Trial judge erring in dismissing three counts under Occupational Health and Safety Act as duplicitous merely because they overlapped with or duplicated other counts -- Trial judge also erring in dismissing counts because they failed to disclose offence in clear terms and with sufficient particulars where defendants did not ask for particulars or claim not to know what they were charged with -- Trial judge not having discretion to collapse information by dismissing some counts because they overlap with other counts arising out of same incident.
The defendants were charged with offences under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 after a section of a wooden framework snapped, killing a worker. Counts 1, 2 and 4 of the information alleged a failure to comply or a failure to ensure compliance with the design and construction requirement in s. 31(1)(a) of O. Reg. 213/91, and counts 3 and 5 alleged a failure to take reasonable precautions for the protection of the worker. The trial judge convicted the defendants on counts 3 and 5 and dismissed counts 1, 2 and 4. The provincial offences appeal court judge set aside the convictions and entered acquittals, and dismissed the Crown's cross-appeal. The Crown appealed the dismissal of counts 1, 2 and 4.
Held, the appeal should be allowed.
The trial judge erred in dismissing counts 1, 2 and 4 because they were "duplicitous". He appeared to have confused a count that is duplicitous with a count that duplicates or overlaps another count. Counts 1, 2 and 4 each alleged a single offence; no count offended the single transaction rule. A number of counts in an information, each arising out of the same incident and even overlapping or duplicating each other, does not create a duplicitous charge. The trial judge also erred in dismissing counts 1, 2 and 4 because they failed to disclose an offence in clear terms and with sufficient particulars. Neither defendant asked for more particulars or claimed not to know what they were charged with. The appeal court judge was wrong to say that the trial judge had discretion to reduce the number of counts to one count against each defendant. A trial judge cannot collapse an information by dismissing some of the counts simply because those counts may overlap with other counts arising out of the same incident. Even if the trial judge had applied Kienapple to counts 1, 2 and 4, at most he could have ordered a conditional stay; he could not have dismissed the charges or acquitted the defendants.
APPEAL from the judgment of Power J., [2009] O.J. No. 3225, 83 C.L.R. (3d) 44 (S.C.J.) dismissing the Crown's appeal from dismissal of three counts in an information.
Cases referred to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76, 44 D.L.R. (3d) 351, 1 N.R. 322, 15 C.C.C. (2d) 524, 26 C.R.N.S. 1; R. v. Provo, 1989 CanLII 71 (SCC), [1989] 2 S.C.R. 3, [1989] S.C.J. No. 77, 97 N.R. 209, [1989] 5 W.W.R. 97, J.E. 89-1050, 59 Man. R. (2d) 1, 49 C.C.C. (3d) 417, 70 C.R. (3d) 315, 7 W.C.B. (2d) 297, consd Other cases referred to R. v. Milberg, 1987 CanLII 6822 (ON CA), [1987] O.J. No. 353, 20 O.A.C. 75, 35 C.C.C. (3d) 45, 1 W.C.B. (2d) 464 (C.A.); [page785] R. v. Papalia, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256, [1979] S.C.J. No. 47, 93 D.L.R. (3d) 161, 26 N.R. 133, 45 C.C.C. (2d) 1, 11 C.R. (3d) 150, 7 C.R. (3d) 185, 3 W.C.B. 205; R. v. Rowley, 1972 CanLII 1308 (ON CA), [1972] O.J. No. 409, 7 C.C.C. (2d) 230 (C.A.); R. v. Selles (1997), 1997 CanLII 1150 (ON CA), 34 O.R. (3d) 332, [1997] O.J. No. 2502, 101 O.A.C. 193, 116 C.C.C. (3d) 435, 35 W.C.B. (2d) 195 (C.A.) Statutes referred to Occupational Health and Safety Act, R.S.O. 1990, c. O.1 [as am.], ss. 23(1)(a), (b), 25(1)(c), (2)(h) Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 25(2), (6), 131 Rules and regulations referred to O. Reg. 213/91 (Occupational Health and Safety Act), s. 31(1), (a)
D.R. McCaskill, for appellant. Don Rasmussen, for respondent Thomas G. Fuller & Sons Ltd. Norm Keith and Anna Abbott, for respondent Black & McDonald Limited.
The judgment of the court was delivered by
LASKIN J.A.: --
A. Introduction
[1] The issue on this appeal is whether the provincial offences appeal court judge erred in law in upholding the dismissal of three counts -- counts 1, 2 and 4 -- in an information. The case arises out of the death of an employee of the respondent Black & McDonald Limited at a construction site in Ottawa.
[2] The City of Ottawa hired the respondent, Thomas G. Fuller and Sons Ltd., as the general contractor on a project to upgrade the Fleet Street Pumping Station. Fuller retained Black & McDonald as a subcontractor. Yves Blondin, a supervisor with Black & McDonald, was accidentally killed during the construction.
[3] The Ministry of Labour laid charges under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 against both Fuller and Black & McDonald in an eight-count information, of which counts 6, 7 and 8 were later withdrawn. Counts 1, 2 and 3 laid charges against Fuller; counts 4 and 5 laid charges against Black & McDonald.
[4] After a seven-day trial in the Ontario Court of Justice, the trial judge convicted Fuller on count 3 and Black & McDonald on count 5, and fined each respondent $85,000. However, the trial [page786] judge dismissed counts 1, 2 and 4, holding that they were "duplicitous" and "fail to disclose an offence, in clear and simple terms". Each respondent appealed its conviction. The Crown cross-appealed against the dismissal of counts 1, 2 and 4, and against the sentences.
[5] On appeal, the appeal court judge set aside the convictions and entered acquittals. He concluded that each respondent had made out the defence of due diligence. The appeal court judge also dismissed the Crown's cross-appeal.
[6] In respect of counts 1, 2 and 4, although he did not agree with all of the trial judge's reasoning, the appeal court judge concluded that the trial judge had reached the correct result. In the appeal court judge's view, there was duplication or overlapping among all five counts and the trial judge had exercised his discretion reasonably in reducing the number of counts against each respondent to one.
[7] The Crown sought leave to appeal under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33. Armstrong J.A. denied leave to appeal from the acquittals on counts 3 and 5. However, he granted leave to appeal from the dismissal of counts 1, 2 and 4. He wrote that the Crown "has raised a question of law concerning the validity of the charges, the answer to which . . . is essential for the due administration of justice".
[8] For the reasons that follow, I would allow the Crown's appeal, and order a new trial on counts 1, 2 and 4.
B. Additional Facts
[9] The Fleet Street Pumping Station provides clean drinking water to commercial and residential buildings in the Ottawa area. Fuller was hired to do the main construction work at the station. Its work included laying large pre-cast concrete pipe sections in the underground trenches in order to carry water from the pumping station. Fuller had not performed this type of installation before, so it brought in Black & McDonald as a mechanical subcontractor. Black & McDonald had some experience with this installation, and provided both workers and a supervisor.
[10] A wooden framework was used as a brace to pull the pipe sections into place. On the day of the incident -- February 21, 2006 -- Mr. Blondin went down in the trenches. A vertical section of the wooden framework snapped. A piece broke off, struck Mr. Blondin in the head and killed him. The Crown's theory was that the wooden framework was not designed or constructed to resist the forces to which it was subjected. [page787]
C. The Relevant Legislation and the Charges
(a) The legislation
[11] Charges were laid under s. 23(1)(a), s. 23(1)(b), s. 25(1)(c) and s. 25(2)(h) of the Occupational Health and Safety Act and under s. 31(1)(a) of O. Reg. 213/91 under the Act.
[12] Section 23(1)(a) states:
23(1) A constructor shall ensure, on a project undertaken by the constructor that, (a) the measures and procedures prescribed by this Act and the regulations are carried out on the project[.] A general contractor -- as Fuller was on the Fleet Street Pumping Station project -- is a "constructor" under the Act. A constructor has overall responsibility for safety at a construction project.
[13] Section 23(1)(b) states:
23(1) A constructor shall ensure, on a project undertaken by the constructor that, . . . . . (b) Every employer and every worker performing work on the project complies with this Act and the regulations[.]
[14] Section 25(1)(c) states:
25(1) An employer shall ensure that, . . . . . (c) The measures and procedures prescribed are carried out in the workplace[.] Black & McDonald was an employer under the Act and it employed Mr. Blondin.
[15] Section 25(2)(h) states:
25(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[.]
[16] O. Reg. 213/91 (Occupational Health and Safety Act) regulates construction projects. Section 31(1) addresses project design and construction:
31(1) Every part of a project, including a temporary structure, (a) shall be designed and constructed to support or resist all loads and forces to which it is likely to be subjected without exceeding the allowable unit stress for each material used[.][page788]
(b) The counts
[17] The Crown was granted leave to appeal the dismissals on counts 1, 2 and 4, but not the acquittals on counts 3 and 5. However, to put counts 1, 2 and 4 in context, I list all five counts:
Count 1 -- That Thomas G. Fuller and Sons Ltd. . . . did commit the offence of failing, as a constructor, to ensure that every part of a project was designed and constructed to support or resist all loads and forces to which it is likely to be subjected, contrary to sec. 31(1)(a) of Ontario Regulation 213/91, at a workplace located at 10 Fleet St., Ottawa, Ontario, Fleet Street Pumping station, contrary to section 23(1)(a) of the Occupational Health and Safety Act, R.S.O. 1990 c. O.1, as amended.
Count 2 -- AND FURTHER THAT Thomas G. Fuller and Sons Ltd. . . . did commit the offence of failing, as a constructor, to ensure that every employer and every worker performing work on a project complied with the OHSA and its regulations, at a workplace located at 10 Fleet St., Ottawa, Ontario, Fleet Street Pumping station, contrary to sec. 23(1)(b) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended.
PARTICULARS: The defendant failed to ensure that an employer, Black and McDonald Limited, complied with the provisions of sec. 31(1)(a) of Ontario Regulation 213/91. A worker, Yves Blondin, was killed.
Count 3 -- AND FURTHER THAT Thomas G. Fuller and Sons Ltd. . . . did commit the offence of failing, as an employer, to take every precaution reasonable in the circumstances for the protection of a worker, at a workplace located at 10 Fleet St., Ottawa, Ontario, Fleet Street Pumping station, contrary to sec. 25(2)(h) of the Occupational and Safety Act, R.S.O. 1990, c.O.1, as amended.
PARTICULARS: The defendant failed to take the reasonable precautions of:
a) determining and/or limiting the forces and load applied to a wooden frame.
b) conducting a pre job hazard analysis.
A worker, Yves Blondin, was killed.
Count 4 -- AND FURTHER THAT Black and McDonald Limited . . . did commit the offence of, failing, as an employer, to ensure that every part of a project was designed and constructed to support or resist all loads and forces to which it is likely to be subjected, contrary to sec. 31(1)(a) of Ontario Regulation 213/91, at a workplace located at 10 Fleet St., Ottawa, Ontario, Fleet Street Pumping station, contrary to section 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended.
Count 5 -- AND FURTHER THAT Black and McDonald Limited . . . did commit the offence of failing, as an employer, to take every precaution reasonable in the circumstances for the protection of a worker, at a workplace located at 10 Fleet St., Ottawa, Ontario, Fleet Street Pumping station, contrary to sec. 25(2)(h) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended.
PARTICULARS: The defendant failed to take the reasonable precautions of:
a) determining and/or limiting the forces and load applied to a wooden frame. [page789]
b) conducting a pre job hazard analysis.
A worker, Yves Blondin, was killed.
[18] As is apparent, the subject matter of counts 1, 2 and 4 differs from the subject matter of counts 3 and 5. Counts 1, 2 and 4 all allege a failure to comply or a failure to ensure compliance with the design and construction requirement in s. 31(1)(a) of the Regulation. Counts 3 and 5 allege a failure to take reasonable precautions for the protection of Mr. Blondin.
D. Analysis
(a) Reasons of the trial judge
[19] The trial judge gave two reasons for dismissing counts 1, 2 and 4. First, the counts are "duplicitous". Second, the counts contain allegations that are "convoluted", "disingenuous", "vague and ambiguous" and [at para. 20] "in some instances barely discloses an offence". In short, according to the trial judge [at para. 20], counts 1, 2 and 4 "fail to disclose an offence, in clear and simpler terms" and "[a]bsent 'particulars' a defendant might be hard-pressed to decipher what it is they have done wrong". In my view, each reason given by the trial judge amounts to an error of law.
(i) The counts are not duplicitous
[20] The trial judge appears to have confused a count that is duplicitous with a count that duplicates or overlaps another count. A count is duplicitous if it offends the single transaction rule -- that is, it joins separate and distinct offences in the same count: see R. v. Papalia, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256, [1979] S.C.J. No. 47; R. v. Selles (1997), 1997 CanLII 1150 (ON CA), 34 O.R. (3d) 332, [1997] O.J. No. 2502 (C.A.). The single transaction rule is codified [in] s. 25(2) of the Provincial Offences Act:
25(2) Each count in an information shall in general apply to a single transaction and shall contain and is sufficient if it contains in substance a statement that the defendant committed an offence therein specified.
[21] Here, each count alleges a single offence. No count offends the single transaction rule. Neither Fuller nor Black & McDonald suggested otherwise. Additionally, a number of counts in an information, each arising out of the same incident and even overlapping or duplicating each other, does not create a duplicitous charge. A single incident may give rise to multiple charges.
[22] However, even if the trial judge used the word duplicitous to try to express his view that the counts were repetitive, he [page790] erred in dismissing counts 1, 2 and 4 on that basis, as I will explain below.
(ii) The counts disclose an offence in clear terms and with sufficient particulars
[23] The trial judge was obviously concerned, from the way the charges were drafted, that Fuller and Black & McDonald would not know the case against them. However, each count is drafted precisely in the wording of the relevant sections of the Act and s. 31(1)(a) of the Regulation. Offences drafted in the words of a statute or a regulation are presumed to be valid. For example, in R. v. Rowley, 1972 CanLII 1308 (ON CA), [1972] O.J. No. 409, 7 C.C.C. (2d) 230 (C.A.), at p. 231 C.C.C., a majority of this court upheld the validity of an information "[h]aving regard . . . to the fact that the information does charge an offence and charges that offence in the exact wording of the section of the Criminal Code under which it was laid". See, also, R. v. Milberg, 1987 CanLII 6822 (ON CA), [1987] O.J. No. 353, 35 C.C.C. (3d) 45 (C.A.), at pp. 49-50 C.C.C.
[24] A defendant is entitled to sufficient particulars of each charge. Section 25(6) of the Provincial Offences Act states:
25(6) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the defendant reasonable information with respect to the act or omission to be proved against the defendant and to identify the transaction referred to.
[25] The five counts in the information complied with s. 25(6). Some particulars were given. Neither Fuller nor Black & McDonald asked for more particulars. Neither claimed that it did not know what it was charged with or that any of the charges failed to disclose an offence. The trial judge dismissed counts 1, 2 and 4 on his own initiative, and he was wrong to do so.
(b) Reasons of the appeal court
[26] The provincial offences appeal court judge exacerbated the trial judge's errors. He gave two reasons of his own for upholding the dismissal of counts 1, 2 and 4. First, he said [at para. 23], "there is definitely duplication and/or overlapping between all five counts". Second, he said that the trial judge had exercised his discretion reasonably in reducing the number of counts to one against each defendant. I do not agree with either reason.
(i) The counts can overlap
[27] I accept that some of these counts overlap with others; however, that does not make any of the counts objectionable. A [page791] single incident may give rise to more than one charge. As Cory J.A. said in Milberg, at p. 49 C.C.C., "It is manifest that many offences are capable of being committed in more ways than one under the provisions of the Code."
[28] The trial judge should have adjudicated on all five counts and made findings on each of them. If he convicted either or both defendants on all charges, he could then decide whether to conditionally stay one or more charges under the rule against multiple convictions: see R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76; R. v. Provo, 1989 CanLII 71 (SCC), [1989] 2 S.C.R. 3, [1989] S.C.J. No. 77.
(ii) The appeal court judge erred in holding that the trial judge could collapse a valid information
[29] The appeal court judge was wrong to say that the trial judge had discretion to reduce the number of counts to one count against each defendant. No such discretion exists. A trial judge cannot collapse an information by dismissing some of the counts simply because those counts may overlap with other counts arising out of the same incident. To give a trial judge that discretion would improperly interfere with the Crown's discretion to lay the charges it deems appropriate. The appeal court judge therefore erred in upholding the dismissals on counts 1, 2 and 4.
[30] In this court, Fuller and Black & McDonald put forward two other bases to dismiss the appeal. First, they argue that the trial ought to have applied Kienapple to counts 1, 2 and 4 because they were subsumed in the two more general counts, 3 and 5. Second, they argue that their due diligence defence, which succeeded on counts 3 and 5 before the appeal court judge, is bound to succeed on counts 1, 2 and 4. I do not accept either argument.
[31] As the Supreme Court of Canada made clear in Provo, the application of the rule in Kienapple against multiple convictions does not result in an acquittal; it results in a conditional stay. Therefore, assuming the trial judge had made findings of guilt on all five counts, even if he had applied Kienapple to counts 1, 2 and 4, at most he could have ordered a conditional stay. He could not have acquitted the defendants or dismissed the charges against them. And once the appeal court judge overturned the findings of guilt on counts 3 and 5, the conditional stays on counts 1, 2 and 4 would have been set aside and the findings of guilt on these counts restored.
[32] The defendants' due diligence defence succeeded on counts 3 and 5. That does not necessarily mean a due diligence [page792] defence would succeed on counts 1, 2 and 4. As I said earlier, counts 3 and 5 are aimed at different conduct from counts 1, 2 and 4. The two sets of counts may overlap each other but they do not duplicate each other. Counts 3 and 5 address the alleged failure of Fuller and Black & McDonald to take reasonable precautions at the construction site to protect Mr. Blondin. Counts 1, 2 and 4 address alleged design and construction deficiencies in the pipe and wooden framework. If Fuller and Black & McDonald have a due diligence defence to counts 1, 2 and 4, they must establish that defence at trial.
E. Conclusion
[33] The trial judge erred in law in dismissing counts 1, 2 and 4. The appeal court judge erred in upholding the dismissals. I would allow the Crown's appeal, set aside the dismissals and order a new trial on counts 1, 2 and 4.
Order accordingly.