COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Labour) v. Cobra Float Service Inc., 2020 ONCA 527

DATE: 20200825

DOCKET: C67448

Watt, Harvison Young and Coroza JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario (Ministry of Labour)

Respondent

and

Cobra Float Service Inc.

Appellant

Nader Hasan and Caitlin Milne, for the appellant

Wes Wilson and Graeme Adams, for the respondent

Heard: June 22, 2020 by video conference

On appeal from judgment of Justice Ronald Minard of the Ontario Court of Justice, dated March 19, 2019.

Harvison Young J.A.:

[1] On appeal at the Ontario Court of Justice, Cobra Float Service Inc. (“Cobra”) was convicted for an offence contrary to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. Cobra argues that the appeal judge erred in summarily dismissing its application for a stay of proceedings, which it brought pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms, and before sentencing occurred. For the reasons that follow, I would dismiss the appeal.

A. The Proceedings Below

[2] In May 2013, Luis Pinto was tragically killed while unloading a large piece of equipment which fell over and crushed him. As a result, Mr. Pinto’s employer, Cobra, was charged in May 2014 with failing to ensure that equipment was not moved in a manner that endangered a worker, contrary to s. 25(1) of the Occupational Health and Safety Act. After a five-day trial, Cobra was acquitted by a justice of the peace on the basis of a due diligence defence.

[3] The Crown appealed the acquittal and was successful. In October 2018, the appeal judge entered a conviction and put the matter over for sentencing, pursuant to s. 121 of the Provincial Offences Act, R.8.0. 1990, c. P.33 (“POA”).

[4] Before sentencing occurred, Cobra brought an application for a stay of proceedings, pursuant to s. 11(b) of the Charter. The Crown brought a motion for summary dismissal of Cobra’s s. 11(b) application.

[5] In March 2019, the appeal judge dismissed Cobra’s s. 11(b) application. He found that as a statutory court, he had no inherent jurisdiction and there was no POA provision granting jurisdiction to hear a new Charter application on appeal. He stated:

there is clearly no express or implied power in either s. 116 or s. 121 [of the POA] for an appeal court to hear or grant relief on an issue that was not raised and ruled upon at the trial level.

[6] The appeal judge also held that there is a general common law rule against determining a new issue on appeal. He found that the case at bar did not fit into any of the exceptions to this general rule.

[7] To begin, he noted defence counsel was competent, and did not bring an s. 11(b) application at any point of the trial (despite numerous opportunities to do so, such as after the release of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 shortly before the trial began). In addition, he distinguished this case from the circumstances of R. v. Bosley, 1992 CarswellOnt 125 (Ont. C.A.), because the s. 11(b) application in this case “could readily have been brought without in any way upsetting anyone”. The appeal judge sentenced Cobra to a fine of $85,000.

[8] Cobra sought leave to appeal from the conviction and the s. 11(b) dismissal, under s. 131 of the POA. This court denied leave to appeal from the conviction, but granted leave to appeal from the s. 11(b) dismissal: R. v. Cobra Float Service Inc. (July 23, 2019), Toronto, M50411 (Ont. C.A.), at para. 6.

B. Issues on Appeal

[9] The issues on this appeal are narrow:

(1) Did the appeal judge have the jurisdiction to consider the s. 11(b) application, brought before him for the first time?

(2) If the answer to (1) is yes, did the appeal judge properly exercise his jurisdiction to dismiss the s. 11(b) application summarily?

[10] For the reasons that follow, I would find (1) that that the appeal judge did have jurisdiction to consider Cobra’s s. 11(b) application, and (2) that he did not err in summarily dismissing the s. 11(b) application.

[11] In light of those conclusions, it will be unnecessary to address the merits of the s. 11(b) application.

C. ANALYSIS

(1) Did the appeal judge have the jurisdiction to consider the s. 11(b) application, brought before him for the first time?

[12] Cobra submits that the appeal judge erred in finding he had no jurisdiction over its s. 11(b) application. It notes that the test for Charter jurisdiction is set out in R v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 81, as follows:

a) does the tribunal or court have power to decide questions of law; and

b) if so, does any statute exclude Charter jurisdiction from the tribunal or court’s powers?

[13] In this case, Cobra submits that a statutory court convened under s. 121 of the POA clearly has powers to decide questions of law, and there is no statute excluding Charter jurisdiction from the POA court’s powers. As such, the appeal judge had jurisdiction to hear the s. 11(b) application.

[14] The respondent does not take issue with the appellant’s position that the appeal judge had the jurisdiction to hear the case. In fact, it argues that the reasons, read fairly and as a whole, indicate that the appeal judge was simply declining to exercise his discretion to entertain the application at that stage of the proceedings.

[15] In my view, the appeal judge had jurisdiction to consider an s. 11(b) application on appeal. The appeal judge was sitting pursuant to s. 121 of the POA. He had the power to decide questions of law and the legislature has not clearly withheld authority to adjudicate the Charter. As such, pursuant to the test in Conway,at para. 81, the appeal judge did have general jurisdiction to hear Charter issues that are properly brought before it. Further, this court has previously found that an appellant is “entitled to raise the s. 11(b) Charter issue of post-hearing delay in an appeal to the Provincial Offences Appeal Court”: Orgaworld Canada Ltd. v. Ontario (Environment and Climate Change), 2014 ONCA 654, 319 C.R.R. (2d) 335, at para. 2.

(2) Did the appeal judge properly exercise his jurisdiction to summarily dismiss the s. 11(b) application?

[16] As discussed above, the appeal judge had the jurisdiction to consider a Charter application. The crucial issue in this case arises from the fact that Cobra brought its s. 11(b) application for the first time on appeal.

[17] The decision to hear a constitutional issue for the first time on appeal is discretionary: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 20. Accordingly, the appeal judge had the discretion to decline to consider Cobra’s s. 11(b) application. That leads to the question whether the appeal judge properly exercised his discretion to dismiss the 11(b) application summarily.

[18] Discretionary decisions attract a high level of deference on appeal. Appellate courts will only intervene where there is a clearly identifiable legal error, a material misapprehension of the relevant evidence, or a result that is clearly wrong in the sense that it is not defensible on the relevant law and facts: Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, at para. 25.

[19] Generally speaking, appeal courts will decline to hear new arguments on appeal, including constitutional arguments: R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96, at para. 6. As this court explained in R. v. L.G., 2007 ONCA 654, 228 C.C.C. (3d) 194, at para. 43, the reluctance to hear new issues on appeal stems from:

concerns about prejudice to the other side arising from an inability to adduce necessary responding evidence at trial, the lack of a sufficient record to make necessary findings of fact, and society’s overarching interest in the finality of litigation.

[20] The test for whether new issues should be considered on appeal is stringent. The discretion to hear a new constitutional issue on appeal “should only be exercised exceptionally and never unless the challenger shows that doing so causes no prejudice to the parties”: Guindon at para. 23. When determining whether to exercise this discretion, a judge should consider “all of the circumstances”, including the state of the record, fairness to all parties, the importance of having the court resolve the issues, and the broader interests of the administration of justice: Guindon, at para. 20.

[21] It is also worth noting that this court has said “the failure to move for a stay of proceedings, either before or at trial, would, in most cases, be fatal”: R. v. Rabba (1991), 1991 CanLII 7073 (ON CA), 64 C.C.C. (3d) 445 (Ont. C.A.), at p. 447.

[22] Cobra argues that the appeal judge erred in declining to hear the s. 11(b) application. There was no waiver of s. 11(b) rights that warranted a summary dismissal. Rather, it submits that a significant portion of the delay prior to the end of the trial (10 months) was attributable to the trial court and the justice of the peace. This created an “intractable dilemma”, similar to that in Bosley, where it is understandable that defence counsel would not want to complain about s. 11(b) in the middle of the trial to the trial judge who, in its view, was partially to blame for the delay in issue. It was loathed to jeopardize an acquittal, which it obtained at trial.

[23] As for post-verdict delay, Cobra argues they could not have raised those issues before the trial court, given it was functus at that point.

[24] The appeal judge made a number of findings. He found that the defence had multiple opportunities to raise s. 11(b) concerns before the appeal, but did not do so. This led him to find that it was speculation to say Cobra would have raised s. 11(b) at trial, had Cobra been found guilty. In his view, experienced defence counsel made a deliberate decision not to raise s. 11(b) throughout the entire proceedings. These were findings of fact that attract a high level of deference.

[25] I agree with the appeal judge that this case is distinguishable from Bosley, in which the unreasonable 17-month delay occurred entirely after the completion of evidence. Further, defence counsel in Bosley had repeatedly expressed concern about the delay accruing after the end of the evidence. Doherty J.A. called this “one of those unusual cases where this court should entertain a s. 11(b) argument even though a stay was not sought prior to the completion of the proceedings below”: Bosley,at para. 23. This case was very different. As the appeal judge noted, the allegedly unreasonable delay did not entirely arise after trial, and the defence was silent about s. 11(b) until Cobra was convicted on appeal.

[26] The appeal judge also addressed Cobra’s argument that it was in an “intractable dilemma”, given that the justice of the peace was a major source of the delay. Cobra submits that in these circumstances, as in Bosley, it is understandable that defence counsel was reluctant to bring an s. 11(b) application. The appeal judge rejected this argument, stating that:

the transcripts show a clear respect by counsel on both sides for the justice of the peace and vice versa. For lack again of a better phrase, their skin would not be that thin that they would refrain from bringing such a decisive motion simply because somebody’s feelings might be hurt or upset.

[27] There is no evidence on the record that allows this court to find that defence counsel decided not to raise s. 11(b) out of fear of punishment from the justice of the peace. For that reason, finding any fear of punishment is speculative and the appeal judge was entirely justified to reject the submission.

[28] In any case, it would have been open to Cobra to bring a s. 11(b) application in response to the Crown’s appeal from the acquittal. Cobra also could have requested that, if the judge was contemplating granting the appeal, then a new trial should be ordered to allow them to argue delay before a court at first instance. Despite having competent counsel, Cobra did not do either of these things.

[29] Finally, Cobra also submitted that the general rule against raising issues, particularly Charter issues, for the first time on appeal should not apply here because the necessary record of dates, adjournments and full transcripts were before the appeal court as they are before this court. Even if that is the case, it does not follow that an appeal court is obliged to hear an appeal if the record is sufficient. This is merely one factor that may be considered. As already discussed, the rule against hearing new issues on appeal is stringent and the discretion to hear a new constitutional issue on appeal should only be exercised exceptionally and never lightly.

[30] The Crown argues that had the delay issue been known to Crown counsel at trial, it would have asked different questions of a witness to build a suitable evidentiary record for the s. 11(b) application. The Crown also submits that having the s. 11(b) application heard on appeal truncates their rights of appeal, in that they would only be able to appeal on issue of law alone, with leave. As outlined earlier, the onus is on Cobra to show there is no prejudice in these circumstances. The fact that there is a complete record of timelines does not address this concern, and I am not satisfied that Cobra has met this burden.

[31] The appeal judge’s findings were open to him on the record before him and I see no basis for interfering with his exercise of discretion not to entertain the s. 11(b) application, for the reasons he gave. I am not persuaded the appeal judge caused an injustice in summarily dismissing Cobra’s s. 11(b) application. As the appeal judge explained, there is nothing here to justify departing from the general rule that judges should decline to consider a new issue for the first time on appeal.

[32] Given the high deference given to discretionary decisions, the stringent standard for hearing new issues on appeal, and the lack of exceptional circumstances that are necessary to meet this stringent standard, the appeal judge did not err in summarily dismissing Cobra’s s. 11(b) application.

D. Disposition

[33] For these reasons, I would dismiss the appeal.

Released: August 25, 2020

“D.W.”

“A. Harvison Young J.A.”

“I agree David Watt J.A.”

“I agree S. Coroza J.A.”