COURT OF APPEAL FOR ONTARIO DATE: 20220414 DOCKET: C68507
Feldman, van Rensburg and Coroza JJ.A.
BETWEEN
Her Majesty the Queen Appellant
and
Bondfield Construction Company Limited, J.M.R. Electric Ltd., and Toromont Industries Ltd. Respondents
Counsel: Daniel Kleiman and Alessandra Hollands, for the appellant Robert E. Hutton and Ciara L. Pittam, for the respondent J.M.R. Electric Ltd. Susan L. Crawford, for the respondent Toromont Industries Ltd. No one appearing for the respondent Bondfield Construction Company Limited
Heard: November 2, 2021 by video conference
On appeal from the judgment of Justice Christine E.J. Malott of the Ontario Court of Justice, dated December 2, 2019, allowing an appeal from the convictions entered by Justice of the Peace Maureen Ryan-Brode, dated May 5, 2017.
van Rensburg J.A.:
A. OVERVIEW
[1] This is an appeal by Her Majesty the Queen in Right of Ontario (the “Crown”), with leave, from a judgment allowing appeals from convictions of offences under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”), that were prosecuted by the Ministry of Labour.
[2] The charges arose after a field service technician on a construction project was severely burned by an arc flash while cleaning an energized part of a switchgear cabinet using a paintbrush with a metal band. After having worked on de-energized cabinets, on returning from his lunch break, the worker inadvertently opened the wrong cabinet to clean, causing his paint brush to come into contact with live input stabs [1] at the rear of the cabinet. The work was being performed in a high-voltage electrical room to which the door had, at times, been propped open, permitting access by various tradespeople.
[3] The appeal engages the interpretation of certain provisions of the regulation Construction Projects, O. Reg. 213/91, enacted under the OHSA, dealing with Electrical Hazards. The central issue is the meaning of “energized exposed parts of electrical equipment” in two regulatory provisions: s. 184(1), which provides that only authorized persons shall enter or be permitted to enter a room containing exposed energized electrical parts, and s. 190(4), which requires that the power supply to electrical equipment be disconnected, locked out of service, and tagged if work is to be done on or near energized exposed parts.
[4] The justice of the peace (the “trial justice”) convicted the three respondents of offences under the OHSA in relation to breaches of ss. 184(1) and 190(4) of O. Reg. 213/91, and also convicted the respondent Toromont Industries Ltd. (“Toromont”) of an offence relating to s. 187 of the regulation (respecting the use by its employee of a tool capable of conducting electricity so close to energized electrical equipment that it could make electrical contact). The trial justice acquitted the three respondents of offences relating to s. 182(1) of the regulation (respecting the professional qualifications required to connect, maintain or modify electrical equipment or installations).
[5] On appeal, a judge of the Ontario Court of Justice (the “appeal judge”) overturned the convictions and entered acquittals on the offences related to ss. 184(1) and 190(4), after concluding the actus reus of these offences had not been established. She directed a new trial of the offence related to Toromont’s breach of s. 187, after finding that the trial justice failed to consider the “reasonable belief in a state of facts that, if true, would have rendered the act or omission innocent” aspect of its due diligence defence. The appeal judge concluded that it was unnecessary to consider the other grounds for the conviction appeals, in particular other challenges to the trial justice’s assessment of the due diligence defences, and the sentence appeals.
[6] I would allow the Crown’s appeal in part. I have concluded that the appeal judge erred in her interpretation of s. 190(4), when, after concluding that this provision applies to energized electrical equipment that is “not concealed or covered”, and observing that the electrical parts were behind circuit breakers with covers, she found that the actus reus for the s. 190(4) offences was not made out. Although the appeal judge applied the same erroneous interpretation to the word “exposed” in s. 184(1), I would not interfere with her conclusion that the Crown failed to establish the actus reus of this offence. I would, however, not adopt all aspects of the trial justice’s interpretation of these provisions. I will explain why I agree with her conclusion that the actus reus for the s. 190(4) offence was established, and why, in respect of s. 184(1), I would conclude that the actus reus of that offence was not established.
[7] As for s. 187, contrary to the appeal judge’s conclusion, and as conceded by Toromont, the trial justice did not fail to address the reasonable mistake of fact aspect of Toromont’s due diligence defence to that charge. Because of her conclusion on this issue, the appeal judge declined to address the other errors alleged by Toromont in respect of its due diligence defence and sentence for the s. 187 offence.
[8] I would accordingly set aside the acquittals for the offences in relation to s. 190(4), and uphold the acquittals for the offences in relation to s. 184(1). I would remit the issues not determined by the appeal judge in relation to the ss. 190(4) and 187 offences, namely, the respondents’ due diligence defences and sentence appeals, to another appeal judge of the Ontario Court of Justice for determination.
B. BACKGROUND FACTS
[9] On May 28, 2013, Stephane Audet, a field service technician, was injured during the construction of the Southwest Detention Centre (the “SWDC”) in Windsor, when the conductive tool he was using to clean a switchgear cabinet made contact with an energized part at the back of the cabinet. The respondent Bondfield Construction Company Limited (“Bondfield”) [2] was in charge of the project and had contracted the respondent J.M.R. Electric Ltd. (“J.M.R.”) for electrical installations. J.M.R., in turn, had contracted Toromont to supply a custom switchgear and two emergency generators for the project, and to commission, test and train workers on the equipment. Audet was employed by Toromont.
[10] The switchgear involved in the incident was the electric power system for the SWDC, which had the ability to distribute power to the entire building or to isolate the power in certain areas. The equipment was located in two adjacent rooms on the upper level of the project: an electrical room, housing the switchgear and two transformers, and a generator room, housing the two generators. The electrical room was accessed from a main corridor through a double door and the generator room was, in turn, accessed through the electrical room.
[11] J.M.R. was responsible for controlling access to the electrical room by restricting entry to authorized persons. J.M.R. posted warning signs on the doorway and entrance to the electrical room, and installed a lock on the double doors. Two of J.M.R.’s master electricians and the Bondfield site superintendent had keys for the door. The J.M.R. master electricians visited the electrical room several times each day. Multiple trades entered and passed through the room, which was also occasionally used for storage. There was evidence, accepted by the trial justice, that the door was occasionally propped open, leaving no controls on entry into the electrical room.
[12] The switchgear assembly measured approximately 40 feet in length and 9 feet in height. It had an “A” side and a “B” side, that could be joined or separated by a “middle section” to operate concurrently or independently. The switchgear was completely enclosed on all sides and the top with sheet metal, except for ventilation openings and inspection windows. Doors and removable covers provided access to the interior, which contained various electrical devices including circuit breakers – electrical switches designed to open and close electrical circuits to control and direct the distribution of energy. The circuit breakers were housed in modular cabinets accessed by loosening and removing thumb screws on the cabinet’s door and then opening the door. The circuit breakers could be moved in and out of their cabinets on a drawer slide.
[13] Once the switchgear and generators were installed, Toromont sent field service technicians to the project to commission and test the generators, which involved verifying their installation according to the manufacturers’ specifications and testing the functionality of different components, including the interconnections between the generators and the switchgear.
[14] Audet and a second field service technician were assigned to commission and test the two emergency generators at the SWDC. They were authorized by J.M.R. to enter the electrical and generator rooms for this purpose. While both were experienced technicians, neither was a licensed electrician or electrician apprentice.
[15] In the second week at the project, commencing on May 27, 2013, the two technicians started to run troubleshooting tests on the equipment. In the course of this testing, a number of false alarms activated in the electrical room. It was determined that the false alarms were caused by metal filings in the switchgear cabinets that had been produced when electricians drilled holes to install the conduits for the communication wiring connecting the switchgear and generators. On May 28, the technicians agreed that Audet would clean the affected switchgear cabinets in order to remove the metal filings.
[16] Before Audet began working on the switchgear cabinets, the circuit breakers had been racked out to prevent the transmission of energy, and locked so that they could not be reconnected to the power supply. [3] The power had been shut down on the “A” side and middle section of the switchgear, while the “B” side remained energized. This meant that the stabs at the rear of some of the cabinets (not the ones Audet was supposed to enter) were still energized. However, all of the cabinets were racked out, locked and tagged in the same manner. The markers did not identify whether a cabinet was energized, only that it had the potential to be energized and was not to be racked back in. To determine which cabinets he was authorized to enter, Audet referred to a schematic diagram.
[17] In the morning, Audet, while wearing proper personal protective equipment (“PPE”), conducted a voltage test on the cabinets he was intending to clean to confirm that they were in fact de-energized. He then removed most of the PPE and proceeded to clean the cabinets, using a vacuum and a paintbrush with a metal band. When he resumed work after his lunch break, Audet intended to clean one of the de-energized cabinets, but inadvertently entered an energized cabinet. As Audet reached to the rear of the cabinet to clean the metal filings, the conductive metal band on his paint brush made contact with an energized input stab, causing an electrical fault within the cabinet and throughout the switchgear. The result was an arc flash, that is, an electrical explosion, producing a large ball of fire that erupted from the cabinet, inflicting severe burns on Audet and causing extensive damage to the switchgear.
[18] Following an investigation by the Ministry of Labour, the three respondents were charged with offences under ss. 23(1)(a) and 25(1)(c) of the OHSA. The charges related to their alleged failures, as an employer in the case of Toromont and J.M.R., and as a constructor in the case of Bondfield, to ensure that certain measures and procedures prescribed by O. Reg. 213/91 were carried out at the worksite. These included the measures and procedures prescribed by ss. 184(1) and 190(4) of the regulation, and in the case of Toromont, s. 187.
C. RELEVANT STATUTORY AND REGULATORY PROVISIONS
[19] Sections 23(1)(a) and 25(1)(c) of the OHSA prescribe the statutory duties of constructors and employers:
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;
25 (1) An employer shall ensure that, (c) the measures and procedures prescribed are carried out in the workplace…
[20] The relevant provisions of O. Reg 213/91 are found under the title “Electrical Hazards”, a part that comprises ss. 181 to 195.3 of the regulation. All three respondents were charged with having failed to comply with ss. 184(1) and 190(4). In particular, it was alleged that, contrary to s. 184(1), they had permitted unauthorized persons to enter a room with exposed energized electrical parts, and that, contrary to s. 190(4), they had not ensured that the power supply was disconnected before work was to be done on or near exposed energized electrical parts.
[21] Sections 184 and 190 provide as follows (I include these sections in their entirety to provide necessary context):
(1) No person, other than a person authorized to do so by the supervisor in charge of the project, shall enter or be permitted to enter a room or other enclosure containing exposed energized electrical parts. (2) The entrance to a room or other enclosure containing exposed energized electrical parts shall be marked by conspicuous warning signs stating that entry by unauthorized persons is prohibited.
(1) This section applies if work is to be done on or near energized exposed parts of electrical equipment or of an electrical installation or conductor. (2) An employer shall, (a) establish and implement written measures and procedures for complying with this section to ensure that workers are adequately protected from electrical shock and burn; and (b) make a copy of the written measures and procedures available to every worker on the project. O. Reg. 627/05, s. 7. (3) The worker shall follow the written measures and procedures. (4) Subject to subsection (9), the power supply to the electrical equipment, installation or conductor shall be disconnected, locked out of service and tagged in accordance with subsection (6) before the work begins, and kept disconnected, locked out of service and tagged while the work continues. (5) Hazardous stored electrical energy shall be adequately discharged or contained before the work begins and shall be kept discharged or contained while the work continues. (6) The following rules apply to the tagging of the power supply under subsection (4):
The tag shall be made of non-conducting material and shall be installed so as not to become energized.
The tag shall be placed in a conspicuous location and shall be secured to prevent its inadvertent removal.
The tag shall indicate, i. why the equipment, installation or conductor is disconnected, ii. the name of the person who disconnected the equipment, installation or conductor, iii. the name of the person’s employer, and iv. the date on which the equipment, installation or conductor was disconnected.
The tag shall not be removed unless it is safe to do so. (7) A worker, before beginning work to which this section applies, shall verify that subsections (4) and (5) have been complied with. (8) If more than one worker is involved in work to which this section applies, a means shall be provided to communicate the purpose and status of, (a) the disconnecting, locking out and tagging of the electrical equipment, installation or conductor; and (b) the discharging and containment of any hazardous stored electrical energy. (9) Locking out is not required under subsection (4) if, (a) in the case of a conductor, it is adequately grounded with a visible grounding mechanism; (b) in the case of equipment or an installation, (i) the power supply is less than 300 volts, the equipment or installation was not manufactured with provision for a locking device for the circuit breakers or fuses, and a written procedure has been implemented that is adequate to ensure that the circuit is not inadvertently energized, or (ii) the power supply is 300 or more volts but not more than 600 volts, the equipment or installation was not manufactured with provision for a locking device for the circuit breakers or fuses, a written procedure as to how work is to be done has been implemented and the work is supervised by a competent worker to ensure that the circuit is not inadvertently energized. [Emphasis added.]
[22] Section 187 of the regulation, which applies to an offence of which Toromont was convicted at first instance, is as follows:
- Tools, ladders, scaffolding and other equipment or materials capable of conducting electricity shall not be stored or used so close to energized electrical equipment, installations or conductors that they can make electrical contact.
D. TRIAL DECISION
[23] The trial justice convicted the respondents under ss. 23(1)(a) (in the case of Bondfield) and 25(1)(c) (in the case of Toromont and J.M.R.) of failing to ensure that the measures and procedures under ss. 184(1) and 190(4) were carried out. She also convicted Toromont of failing to ensure that the measures and procedures under s. 187 were carried out. In the course of her reasons, she concluded that the actus reus for each of these offences was made out. What follows is a brief summary of her reasons on this point. I will not address the trial justice’s treatment of the due diligence defences, which are not pertinent to this appeal, except briefly in relation to s. 187.
(1) The offences under s. 190(4)
[24] Section 190(4) requires that before the work begins, and while it continues, the power supply to the electrical equipment shall be disconnected, locked out, and tagged. The defence argued that s. 190(1) sets out necessary preconditions for s. 190(4), and that these preconditions did not exist in this case. First, they submitted that, contrary to s. 190(1), work was not to be done “on or near energized exposed electrical parts” because the part Audet contacted, which was located behind fastened cabinet doors, was not “exposed”.
[25] In rejecting this argument, the trial justice stated that the word “exposed” in s. 190, in the context of a dangerous high-voltage electrical room, means “easily accessible to an unauthorized person”, and that to hold otherwise would be to deprive any such person of the protection contemplated by the OHSA. She concluded, “I find that an energized part of electrical equipment in a cabinet that is fastened by two thumb screws and easily accessible is exposed within the meaning of the section”: at para. 28.
[26] The defence’s second argument was that the language “if work is to be done” refers to where work is intended to be done, and that because Audet knew he was not to work on energized parts, s. 190(4) did not apply. The trial justice rejected this argument. She held that such an interpretation would restrict the application of the section to instances where workers intentionally work on energized equipment and remove from its ambit those who inadvertently work on energized equipment. Instead, she viewed the phrase “if work is to be done” as importing a temporal component, which is “consistent with section 190(4) which requires that the power supply to the electrical equipment be disconnected, locked out and tagged before the work begins”: at para. 31.
[27] The trial justice found as a fact that on May 28, 2013, Audet was assigned to work near energized equipment and as a result inadvertently worked on energized equipment: at para. 32. She found that “the equipment was easily accessible by simply undoing two screws and therefore exposed to untrained people in the vicinity”: at para. 32. Since “work was to be done on or near energized exposed parts of electrical equipment” and the power supply to the equipment had not been disconnected, locked out and tagged, the actus reus of the s. 190(4) offence was established.
(2) The offences under s. 184(1)
[28] Section 184(1) of the regulation mandates that only authorized persons may enter or be permitted to enter a room or other enclosure containing energized electrical parts. The trial justice found that this section applied to the electrical room where the accident took place because, based on her interpretation of “exposed” in s. 190, the room contained exposed energized electrical parts.
[29] The trial justice held that s. 184(1) requires that the Crown establish that a defendant “failed to take measures and procedures to ensure that unauthorized persons did not enter the electrical room”: at para. 60. She rejected the defence argument that evidence of the presence of an unauthorized person in the electrical room at the time of the specific offence is required in order to establish the actus reus of the offence.
[30] The evidence was that the electrical room was used as a hallway to the generator room and as a storage area for equipment, and that the room was very busy with many tradespeople coming and going: at para. 53. The trial justice was satisfied on the evidence that at times on or about May 28, 2013, the door to the electrical room was propped open, leaving no controls on entry into the room: at para. 63. She therefore concluded that the actus reus of the s. 184(1) offences had been established: at paras. 63-64.
(3) The offence under s. 187
[31] The trial justice found that, contrary to s. 187 of the regulation, Toromont allowed its employee to use tools capable of conducting electricity so close to energized electrical equipment that they could make electrical contact. This finding was specifically in respect of the paintbrush with a metal band that Audet had been using. The Crown thus made out the actus reus of this offence as well.
(4) The due diligence defences
[32] For the purpose of this appeal, it is sufficient to note that, after considering the evidence and arguments of the parties, the trial justice concluded that none of the respondents had established a due diligence defence in respect of ss. 184(1) and 190(4), and that Toromont had not established such a defence in respect of s. 187.
(5) The sentences
[33] The trial justice sentenced Bondfield to a fine of $150,000 for the offence in relation to s. 190(4) and $25,000 for the offence in relation to s. 184(1); J.M.R. to a fine of $50,000 in relation to the s. 190(4) offence and $25,000 for the s. 184(1) offence; and Toromont to a global penalty of $210,000, allocating $170,000 to the s. 190(4) offence, $10,000 to the s. 184(1) offence, and $30,000 to the s. 187 offence.
E. APPEAL DECISION
[34] The respondents appealed their convictions and sentences on a number of grounds. Among other things, they argued that the trial justice erred in her finding that the Crown had proved beyond a reasonable doubt that the electrical parts were “exposed”, as required to prove the actus reus of the offences in relation to ss. 184(1) and 190(4). The appeal judge accepted their arguments on this point. She concluded that the trial justice’s interpretation of the word “exposed” in the context of a dangerous high-voltage electrical room as meaning “accessible to an unauthorized person” was wrong. Instead, the appeal judge accepted the respondents’ argument that, in accordance with the ordinary plain meaning of the word, “exposed” means “not concealed or covered”.
[35] Applying this definition of “exposed”, and based on the evidence, the appeal judge concluded that the equipment had not been “exposed” at the relevant time. Further, even accepting the trial justice’s definition of “exposed”, the appeal judge reasoned that the equipment was not exposed because it was not easily accessible to unauthorized persons. The appeal judge rejected the argument that the energized parts (the input stabs at the rear of the cabinet) were in fact exposed at the time of the incident, as Audet “had taken active steps to defeat all precautions in place and expose the area himself, despite not being scheduled to work there, not conducting a voltage test, not wearing his protective equipment and using a conductive tool”: at p. 11.
[36] The appeal judge concluded that the preconditions for ss. 184(1) and 190(4) were not met, and as such the Crown had not proved the actus reus of the offences beyond a reasonable doubt. In light of this conclusion, she set aside the convictions and entered acquittals for all of the respondents in relation to ss. 184(1) and 190(4). She noted that it was unnecessary to consider the other grounds of appeal argued by the respondents, including with respect to due diligence and their sentence appeals.
[37] The appeal judge, apparently accepting an argument raised by Bondfield, [4] set aside Toromont’s conviction in relation to s. 187 on the basis that the trial justice erred in not considering one of the branches of due diligence articulated in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in particular, whether Toromont reasonably believed in a mistaken set of facts, which, if true, would render the act or omission innocent. She ordered a new trial on the s. 187 charge. It was therefore unnecessary to consider the other grounds of appeal raised by Toromont, including its sentence appeal.
F. ISSUES ON APPEAL TO THIS COURT
[38] The Crown moved for leave to appeal to this court pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33. In granting leave, Juriansz J.A. framed the first issue on appeal as follows: “Did the appeal court err by holding that the Crown failed to prove the actus reus of the offences related to ss. 184(1) and 190(4) of O. Reg. 213/91?” The interpretation of these provisions, including their use of the word “exposed”, is central to this issue.
[39] Juriansz J.A. found that a number of the grounds of appeal that the appeal judge determined were unnecessary to consider are closely related to this central issue, namely: (a) whether proof of the presence of an unauthorized person is an essential element of the actus reus in s. 184(1); (b) whether the phrase “if work is to be done” in s. 190(1) creates a precondition before there is a requirement to disconnect, lock out of service, and tag the power supply to the electrical equipment, installation or conductor; and (c) the impact of worker error, if any, in determining whether the actus reus of the offence related to s. 190(4) has been proven. He directed that the respondents might advance these related arguments on the appeal to this court.
[40] The second issue on appeal, as identified by Juriansz J.A., was whether the appeal judge erred in holding that the trial justice failed to analyze whether Toromont reasonably believed in a mistaken set of facts which, if true, would render its contravention of s. 187 innocent.
[41] At the hearing of the appeal before this court, Toromont conceded the second issue. Toromont accepts the Crown’s position that the appeal judge erred in law in overturning its conviction under s. 187 of O. Reg. 213/91 on the basis that the trial justice had not addressed this aspect of the due diligence defence. I agree. When her reasons are read as a whole, it is clear that the trial justice, as she stated she had done, addressed and dismissed both parts of Toromont’s due diligence defence. I would accordingly allow the Crown’s appeal on the second ground.
[42] Only the first issue remains to be determined on its merits in this appeal: whether the appeal judge erred by holding that the Crown failed to prove the actus reus of the offences related to ss. 184(1) and 190(4) of O. Reg. 213/91, because of the meaning she attributed to the word “exposed”. In relation to s. 184(1), the respondents also renew their argument, advanced at first instance, that proof of the presence of an unauthorized person is an essential element of the actus reus in s. 184(1).
[43] The parties agree that, if the Crown is successful in its appeal, the remaining issues that the appeal judge did not address – in respect of the respondents’ due diligence defences and sentence appeals – should be remitted to another appeal judge of the Ontario Court of Justice for determination.
G. POSITIONS OF THE PARTIES
[44] The central issue on this appeal is the proper interpretation of ss. 190 and 184 of O. Reg. 213/91. This is a question of law, which is subject to review on a correctness standard. Findings of fact are reversible only where a palpable and overriding error has been established: Housen v. Nikolaisen, 2002 SCC 3, [2002] 2 S.C.R. 235, at paras. 8, 10.
[45] Dealing first with s. 190(4), the Crown submits that the trial justice’s finding that Audet was assigned to work near exposed energized equipment relied on a purposive interpretation to the word “exposed” as meaning “easily accessible” in the specific context of a dangerous high voltage electrical room, and is correct. The Crown contends that the appeal judge’s interpretation of “exposed” as “not concealed or covered” would render the provision virtually meaningless, as electrical work almost always involves some effort by a worker to expose potentially energized parts of electrical equipment, an installation or a conductor, which are usually covered or concealed during regular use. The Crown submits that the appeal judge unduly restricted the application of s. 190 to situations where work is to be performed on energized electrical equipment that is already exposed, independent of a worker’s actions.
[46] The Crown relies on the purpose of the OHSA, which is designed to protect workers from injury resulting from both advertent and inadvertent acts in the workplace, and submits that the intent of s. 190(4) is to require that the power supply to exposed energized equipment be disconnected, locked out of service, and tagged before the work begins, regardless of how the energized equipment may be or become exposed.
[47] In the alternative, the Crown submits that, if “exposed” means “not concealed or covered” (the meaning given by the appeal judge), there is no question that Audet was working on exposed, energized equipment at the time he was injured.
[48] The Crown submits that, once it is accepted that the parts Audet was working on or near in the electrical room were “exposed”, and the power source had not been disconnected, the actus reus of the s. 190(4) offence was made out.
[49] As for the s. 184(1) offences, the Crown acknowledged in oral argument that the conclusion that the actus reus was made out depends on the acceptance by this court of the trial justice’s definition of “exposed” in this section as “easily accessible”. The Crown also asserts that the trial justice did not err in concluding that s. 184(1) does not require evidence of the presence of an unauthorized person in the electrical room, and that there was no error in the trial justice’s finding that the door to the electrical room was propped open, such that the actus reus of the s. 184(1) offence was made out.
[50] The respondents seek to uphold the appeal judge’s definition of “exposed” as “not concealed or covered”. They assert that this definition is consistent with the purposes of the OHSA, which include the prohibition of access to dangerous electrical equipment. They argue that the trial justice’s interpretation of the term “exposed” at one point in her reasons as “not easily accessible to unauthorized persons” (a narrower definition than the one the Crown seeks to uphold) cannot be correct as it is often difficult to determine who is an “unauthorized person” on a construction project.
[51] In the alternative, the respondents submit that the court may have regard to the technical definition of “exposed” in relation to live parts in the Ontario Electrical Safety Code, 27th ed. (Toronto: Electrical Safety Authority and CSA Group, 2018), as “live parts that can be inadvertently touched or approached nearer than a safe distance by a person”. [5] On this definition, the energized parts were not “exposed” because they could not be inadvertently touched when they were located in an electrical room, at the back of enclosed cabinets with warning labels, and accessible only through the deliberate act of undoing two thumb screws, removing the cabinet door, and reaching back into the cabinet.
[52] With respect to the requirement in s. 190(1) that “work is to be done on or near energized exposed electrical equipment”, the respondents renew the argument made to the trial justice that it is a precondition for the application of s. 190(4) that the worker must have intended to work on energized, exposed electrical parts. Section 190 applies only to work that was assigned or planned to be performed on energized exposed parts. The work that was to be done by Audet was on de-energized equipment, and, as the appeal judge observed, he had taken active steps to defeat all precautions in place, including exposing the area himself.
[53] Toromont further submits that accepting the Crown’s proposed interpretation of the term “exposed” as “easily accessible” for the purposes of ss. 184(1) and 190(4) would lead to an absurd result for the construction industry. Toromont argues that requiring a project’s entire electrical power system to be disconnected each time the electrical room is accessed by authorized personnel, which occurs multiple times per day, is “plainly absurd” and cannot reflect the intent of the legislators.
[54] As for s. 184(1), while the appeal judge allowed the appeal of the convictions in respect of this section based on her definition of “exposed”, the respondents submit that the trial justice also erred in finding that the Crown had established the actus reus of the charge under s. 184(1) when she held that the proof of the presence of an unauthorized person in the room containing exposed energized electrical parts was not an essential element of the actus reus. Since there was no evidence that an unauthorized person was in the electrical room when the offence was alleged to have been committed, this alone ought to have led to acquittals for all of the respondents under s. 184(1).
H. DISCUSSION
[55] The central issue is whether the Crown established the actus reus of the offences in ss. 190(4) and 184(1) of the regulation, which depends on how each section is interpreted, and in particular the meaning of the word “exposed” in relation to energized electrical equipment as used in each section. I will begin with a brief summary of the principles of interpretation. Then I will turn to interpreting the two regulatory provisions, and explain why the actus reus was made out for the offences under s. 190(4), but not made out for the offences under s. 184(1).
(1) The Principles of Interpretation
[56] The proper approach to the interpretation of legislation is well-known and summarized in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21: “the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament”. This approach applies to any question of statutory or regulatory interpretation, including in respect of the OHSA and its regulations: see, e.g., R. v. Dofasco Inc., 2007 ONCA 769, 87 O.R. (3d) 161, at para. 12, leave to appeal refused, [2008] S.C.C.A. No. 24; Blue Mountain Resorts Ltd. v. Ontario (Labour), 2013 ONCA 75, 114 O.R. (3d) 321, at para. 45. However, these interpretive factors “need not be canvassed separately in every case, and in any event are closely related and interdependent”: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 31.
[57] Although all of the interpretive principles must be kept in mind when approaching the interpretive exercise, the starting point for analyzing questions of statutory interpretation is to examine the words of the provision in their grammatical and ordinary sense: R. v. Conception, 2014 SCC 60, [2014] 3 S.C.R. 82, at para. 14. Sources for the meaning of particular terms may include both dictionary and judicially constructed definitions: see R. v. C.D.; R. v. C.D.K., 2005 SCC 78, [2005] 3 S.C.R. 668, at para. 28.
[58] The purpose of the legislation is also central to the interpretive exercise. The OHSA is public welfare legislation “intended to guarantee a minimum level of protection for the health and safety of workers”: Dofasco, at para. 16. As such, provisions of the OHSA and its regulations must be interpreted generously and “[n]arrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided”: Ontario (Ministry of Labour) v. Hamilton (City) (2002), 58 O.R. (3d) 37 (C.A.), at para. 16, leave to appeal refused, [2002] S.C.C.A. No. 146; see also Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006, at para. 19.
[59] A generous interpretation, however, should not be confused with a limitless one: Blue Mountain Resorts Ltd., at para. 26. While the OHSA aims to protect workers from both deliberate and inadvertent conduct, including accidents that result when workers make mistakes or are careless or reckless, it is important to remember that the OHSA seeks to achieve a reasonable level of worker protection, not an entirely risk-free work environment: Dofasco, at paras. 24-26; Ontario (Ministry of Labour) v. Sheehan’s Truck Centre Inc., 2011 ONCA 645, 107 O.R. (3d) 763, at para. 30.
(2) Section 190(4)
[60] Section 190 sets out a number of measures that must be taken to ensure worker safety. These apply, pursuant to s. 190(1), “if work is to be done on or near energized exposed parts of electrical equipment or of an electrical installation or conductor”. One of the measures is prescribed under s. 190(4): “the power supply to the electrical equipment … shall be disconnected, locked out of service and tagged [in the prescribed manner] before the work begins, and kept disconnected, locked out of service and tagged while the work continues”.
[61] I begin by referring to the submission, made by the Crown in oral argument on this appeal, that the meaning of this section is that no work is to be done on live electrical equipment. I disagree. There is no general prohibition against such work. As Toromont points out, provisions such as s. 182 restrict work connecting, maintaining or modifying electrical equipment or installations to persons qualified as electricians or otherwise permitted to do so. In addition, s. 191 of the regulation sets out the precautionary measures to be taken when “it is not reasonably possible to disconnect the equipment from the power supply before working on or near energized exposed parts”, anticipating that there will be occasions where work is performed on live electrical parts. As such, it is not sufficient that Audet was working on live electrical parts at the time of the accident. Meaning must be given to the wording of the section, which engages the competing definitions of the word “exposed” in the context of s. 190.
[62] There is no definition in the regulation, or for that matter in the OHSA, for the term “exposed”, whether in relation to energized electrical parts or at all. The parties refer to a range of dictionary definitions, including the definition accepted by the appeal judge (“not concealed or covered”) and the dictionary definition accepted by the court in R. v. Proboard Ltd., 1990 CarswellOnt 4324 (Ct. J. (Prov. Div.)), in determining whether a machine had an exposed moving part pursuant to another OHSA regulation (“laid open; rendered accessible or liable to action”). [6] They also point to the technical definitions of “exposed” in the Electrical Safety Code. They advance arguments about the purpose of the regulation and the OHSA, and they argue for and against broad and narrow meanings to be given to the term. Essentially, the Crown’s position is that an exposed electrical part is any part that is easily accessible, irrespective of how it is exposed, while the respondents assert that electrical parts must already have been exposed, in the sense of uncovered or capable of being inadvertently touched, before the section can apply.
[63] It is sometimes helpful to consider dictionary definitions of a term, but in this case, such definitions shed little light on the meaning of the term “exposed” in context. I agree, however, that because “exposed” is used here in the technical context of electrical hazards and safety measures, it is helpful to consider the technical definitions of the term in the Electrical Safety Code. The Electrical Safety Code is a technical document that describes safety standards for the installation and maintenance of electrical equipment. It offers two definitions that depend on whether “exposed” is used in relation to “wiring methods” or “live parts”. “Exposed” in relation to wiring methods means “not concealed”; whereas “exposed” live parts (which is the same as “energized” parts) are “live parts that can be inadvertently touched or approached nearer than a safe distance by a person, and the term is applied to parts not suitably guarded, isolated, or insulated”.
[64] As the Electrical Safety Code definitions illustrate, the meaning of the term “exposed” in relation to electrical parts depends on the context in which it is used. One cannot lose sight of the fact that the issue in this case is not the interpretation of a single word in isolation, but the interpretation of two regulatory provisions, both of which are contained within a regulation that addresses Electrical Hazards, under a statute whose purpose is to protect worker health and safety.
[65] Accordingly, the point of departure is to examine the full text of s. 190, in order to understand the purpose of the provision and the context in which the obligation under s. 190(4) arises. In my view, it is an error to interpret the term “exposed” in isolation, without looking at the context in which the term is used.
[66] Section 190(1) states that the section applies “if work is to be done on or near energized exposed parts of electrical equipment”. It goes on in the following subsections to prescribe various measures for worker safety. These include the obligation of an employer to establish and implement measures and procedures for complying with the section “to ensure that workers are adequately protected from electrical shock and burn”, and to make a copy available to every worker on the project: s. 190(2); the requirement that workers follow the written measures and procedures: s. 190(3); the requirement, subject to certain exceptions, that before the work begins and while it continues, the power supply to the equipment be disconnected, locked out of service and tagged: s. 190(4); and the requirement, before the work begins and while it continues, to adequately discharge or contain hazardous stored electrical energy: s. 190(5).
[67] I pause here to address a point made in argument in relation to Toromont’s submission that for work “to be done” on or near energized electrical equipment, a worker must have been directed or authorized to work on energized equipment. I agree with the trial justice that, if the measures under s. 190 applied only to work intentionally done on energized electrical equipment, the section would be deprived of its meaning. Rather, I agree with her that “if work is to be done” imports a temporal requirement, in the sense that it prescribes various preventive measures that must be in place before work begins on energized electrical equipment, and while it continues. Among other things, s. 190(4) requires that, before the work is performed, the power supply will have been disconnected, locked out and tagged, and that it will remain that way while the work continues.
[68] In other words, the section contemplates that, where work is planned on or near exposed parts that are ordinarily energized, while the work is underway the electrical parts will not be “energized”.
[69] When considered in the context of s. 190 and what it requires, as well as its purpose, it is not difficult to attribute meaning to the term “exposed”. The intention is to protect workers who are working on or near exposed electrical parts from the risk of shock or burn. The only reasonable interpretation of this section, which is faithful to its wording, is that the prescribed measures must be taken whether the electrical parts are already exposed before the work begins, or whether the parts will be exposed in the ordinary course of the work, that is, as the work is “to be done”. In addition, the “on or near” wording in s. 190(1) makes it clear that the prescribed preventive measures are to be taken to prevent a worker’s inadvertent exposure to electrical hazards, including by coming too close to live parts that are “near” where work is to be done, even if the work was not to be done “on” such parts.
[70] When looked at this way, it is clear that the appeal judge’s definition of the term “exposed” in s. 190(1) is incorrect. In using a dictionary definition of “exposed” as “not concealed or covered”, she ignored the context of s. 190. Her interpretation would mean that the measures prescribed by s. 190 would only be required in respect of electrical parts that were already uncovered when the work began. Indeed, adopting this definition, s. 190 would not have applied to the work Audet was assigned to perform, notwithstanding that in order to carry out the work, he had to reach inside the cabinets and clean the area of the input stabs, which were ordinarily energized.
[71] There can be no question that work was to be done by Audet on (and near) energized exposed electrical parts, such that the power supply to the cabinets he was assigned to access, as well as those nearby, had to be disconnected before the work began and while the work continued. Instead, while all of the circuit breaker cabinets were identically racked out (i.e., disconnected from the input stabs at the back of the cabinet) and tagged, the power supply to the input stabs was disconnected only for the circuit breaker cabinets on which Audet was assigned to work, and not for those nearby.
[72] In my view, in order to give this section its intended meaning, which is consistent with its goal of protecting workers from electrical hazards, where a worker will be working on or near live electrical parts, and in the course of this work live parts will be “exposed” to the worker, whether because the parts are already exposed or because the work itself entails exposing electrical parts, s. 190(4) requires that the electrical power supply be disconnected before the work begins and while it continues. Where it is not reasonably possible to disconnect the equipment from the power supply, s. 191 of the regulation prescribes different and additional precautionary measures that must be in place, including that the worker possess the qualifications prescribed by s. 182(1).
[73] The appeal justice was wrong to treat the removal of the cover on the front of the circuit breaker cabinets as Audet having taken active steps to “defeat all precautions in place and expose the area himself”. In order to clean inside the circuit breaker cabinets, Audet had to remove the cabinet covers. The removal of a cover by loosening thumb screws was not, as the respondents suggest, akin to removing a guard from a piece of equipment. The cover did not act as protection against accidental exposure during the course of the worker’s work. It simply enclosed the live electrical parts within the circuit breaker cabinet. The parts were exposed to workers who had been assigned to work inside the circuit breaker cabinets, because their work entailed the removal of the cabinet covers.
[74] It follows that it is an error to focus only on the circuit breaker cabinet that Audet unintentionally entered. Rather, what must be considered is the work that was “to be done” by Audet that day. He was to work on electrical parts that were ordinarily energized and that would be exposed during the course of his work. While doing this work, he would be vulnerable to the hazards of electrical shock and burn that the preventive measures in s. 190 are meant to address.
[75] A number of the measures prescribed by s. 190 were in place to prevent electrical shock and burns to workers before the work began. The circuit breaker cabinets had been “racked out” (that is, disconnected from the power source), locked in place, and tagged. The work required Audet to reach into the cabinet, which housed parts that were ordinarily energized. As the trial justice observed, the tagging and locking out did not serve as a warning to Audet, because all of the cabinets were tagged and locked out in the same way, whether or not the power supply to the cabinets had been shut down. While the measures that were taken protected Audet from electrical shock or burn if he only worked on the de-energized cabinets, he was not protected from inadvertent injury from electrical parts that remained energized near where he was to work.
[76] For these reasons, I am satisfied that the actus reus of s. 190(4) was made out on the facts of this case. Before Audet began his work, it was clear that work was to be done by him both on and near exposed energized parts of electrical equipment, such that the precautionary measures set out in s. 190 were required. The circuit breaker cabinets were racked out, locked and tagged, but the power supply to only some of the cabinets was disconnected. While working “on” the de‑energized cabinets, Audet was working “near” energized cabinets. He inadvertently entered the wrong cabinet, which remained connected to the power supply, not by removing a lock or guard, but by simply removing the thumb screws.
(3) Section 184(1)
[77] Section 184(1) provides that “no person, other than a person authorized to do so by the supervisor in charge of the project, shall enter or be permitted to enter a room or other enclosure containing exposed energized electrical parts”. Section 184(2) requires the entrance to such a room or enclosure to be marked by conspicuous warning signs stating that entry by unauthorized persons is prohibited.
[78] The trial justice relied on her interpretation of “exposed” in relation to s. 190 (“easily accessible to unauthorized persons”) to conclude that the high voltage electrical room where the circuit breaker cabinets were located contained exposed energized electrical parts. She found that, at times on or about the date of the accident, the door to the electrical room had been propped open, leaving no controls on entry. As such, she concluded that the actus reus of the s. 184(1) offences was made out. Invoking a different interpretation of the term (“not concealed or covered”), the appeal judge concluded that the parts were not “exposed” because they were concealed behind cabinet doors, and the parts Audet accessed accidentally were still not “exposed” because he had taken active steps to defeat all precautions in place and expose the area himself. Because the room did not contain any “exposed” energized electrical parts, the actus reus of the offences was not made out.
[79] There are two issues here. First, did the appeal judge err in concluding that the actus reus of the offence had not been made out because the electrical room did not contain “exposed” energized electrical parts? Second, does the Crown have to prove that there was an unauthorized person in the room in order to make out the offence, or is it sufficient, as the trial justice found, that access was permitted because the door was propped open?
[80] As discussed earlier in these reasons, the OHSA and its regulations must be interpreted generously so as not to interfere with the attainment of the legislature’s public welfare objectives: Hamilton (City), at para. 16. Whereas s. 190 has, as its focus, the protection of a worker whose work is to be done on or near exposed energized electrical parts, the focus of s. 184 is on unauthorized workers who may be in the vicinity. The purpose of this provision is to protect workers, but particularly unauthorized workers, from the hazards of exposed energized electrical parts, both by restricting their access to the room or enclosure in which the exposed electrical parts are contained and by requiring that warning signs be posted at the entrance to such a room or enclosure.
[81] It must be remembered that this provision is contained in a regulation that applies to construction projects. In this case, multiple trades, whose work was entirely unrelated to exposed energized parts, were required to perform tasks in the vicinity of the electrical room. The trial justice noted that the vice-president of J.M.R. testified that this was “progressive construction” and that “it was not an ideal situation to have an up and running electrical room when other tasks needed to be completed in that room”: at para. 51. Indeed, the trial justice noted that while Audet was cleaning the switchgear cabinet, he was frequently interrupted by electricians or painters who required access to the same area to perform their work: at para. 62.
[82] The appeal judge erred in her conclusion that the high voltage electrical room did not contain exposed energized parts, such that the actus reus of s. 184(1) could not be established. As I explained in the context of s. 190, Audet worked on or near exposed energized parts when he performed his work on the day of the accident. Without restricting the application of s. 184, it is clear that at the very least, on these facts, the high voltage electrical room contained exposed energized parts when Audet worked on or near such parts, and that s. 184 required that only authorized persons enter or be permitted to enter the electrical room at that time.
[83] On the appeal, counsel for Toromont explained its position that there were no exposed energized parts in the electrical room at the time of the accident, on the basis of its proposed interpretation of “exposed”, but acknowledged that there may be circumstances where there are exposed energized parts in the room. On this appeal, it is not necessary to decide the full range of circumstances in which this electrical room, or any “room or other enclosure”, might contain exposed energized parts. In this case, it is sufficient that Audet worked on or near exposed energized parts on the day of the accident and, at least at the time that he was performing this work, s. 184 required that access to the electrical room be controlled.
[84] The trial justice rejected the respondents’ argument that the actus reus of s. 184(1) requires evidence of unauthorized persons having been in the room at the time of the alleged offence, which, according to the charges listed in the Information, was “on or about the 28th day of May, 2013”. I agree. The plain language of s. 184(1) states that unauthorized persons may not “enter or be permitted to enter”. The interpretation urged by the respondents deprives this language of its meaning. The legislature, having used the disjunctive “or”, must have intended for the phrase “be permitted to enter” to have a different meaning than “enter”. I find that to establish the actus reus, it will suffice that the entrance to the room or enclosure is not controlled to restrict access by unauthorized persons, thus “permitting” unauthorized persons to enter, irrespective of whether an unauthorized person in fact enters the room. In other words, evidence of actual entry by unauthorized persons into the room or enclosure that contains exposed energized parts is a sufficient, but not a necessary, element of the actus reus of the offence.
[85] The essential elements of the actus reus of the s. 184(1) offence are therefore: (1) a person, other than a person authorized to do so by the supervisor in charge of the project, enters or is permitted to enter a room or other enclosure; and (2) the room or other enclosure contains exposed energized electrical parts. The issue respecting the actus reus in this case is whether the Crown established that both of these essential elements were present at the time of the alleged offence. In other words, the factual issue is whether any unauthorized persons were permitted to enter the electrical room at the time Audet was doing his work on exposed energized electrical parts. [7] Following the trial justice’s reasoning, was the door to the electrical room propped open at that time?
[86] Although the trial justice found as fact that the door to the electrical room had been left open “at times on or about” the date of the accident, the Crown did not lead any evidence to establish that the twin elements of the actus reus converged: first, that the room contained exposed energized electrical parts and, second, that while it contained such parts, the respondents failed to prohibit unauthorized persons from the room. Although the door to the electrical room had been propped open at times, leaving no controls on entry into the room, the Crown failed to establish that this ever occurred while the room contained exposed energized parts – that is, while Audet was performing his cleaning work on or near exposed energized parts. Further, the Crown led no evidence that there were any exposed energized parts in the room at any time other than when Audet performed his work that day. Therefore, on this record, the temporal link between the two essential elements has not been established, and the actus reus has not been made out.
[87] In oral argument, the Crown acknowledged that for the actus reus of the offences under s. 184(1) to have been proven on the evidence before the court, it would be necessary to accept a broad definition of “exposed” as “easily accessible”. In other words, the Crown’s position is that the electrical room contained exposed energized electrical parts because the live parts could be easily accessed by removing the front covers from the circuit breaker cabinets. Therefore, the room always contained “exposed” energized parts and any lapse in the prohibition of unauthorized persons from the room would have contravened s. 184(1). The Crown noted in oral argument that this was the basis on which it argued the s. 184(1) offences at first instance, and acknowledged that it had not asserted that s. 184 was contravened only at the moment that the circuit breaker cabinets were accessed by Audet. According to the Crown, its “main concern” was for the s. 190 offences, and the s. 184 offences were “peripheral charges” that were “not causally connected” to what happened to Audet that day.
[88] I note that, arguably, the respondents acted as though s. 184(1) applied to the high voltage electrical room at all times. According to the trial justice’s reasons, the electrical room was locked, and efforts were made to control unauthorized access. The site superintendent for Bondfield gave evidence that access was controlled by J.M.R. The trial justice recounted that “[h]e testified that the electrical room was high voltage and therefore dangerous and access needed to be restricted”: at para. 50. J.M.R.’s representative gave evidence that he came by the electrical room a few times a day to check that the door was locked, and that no one would be in the electrical room unless authorized: at para. 51. A J.M.R. electrician confirmed that access to the room was via a key, and that if a J.M.R. foreman saw the door ajar, they would lock it: at para. 54. This was a high-voltage electrical room that was effectively treated as being “out of bounds” for unauthorized persons.
[89] Nevertheless, the onus is on the Crown to prove beyond a reasonable doubt the actus reus of the offence under s. 184(1), including that, on or about May 28, 2013, while there were “exposed” electrical parts in the electrical room, the respondents failed to ensure that measures and procedures were in place to limit access to that room to persons authorized by the supervisor in charge of the project. The Crown failed to establish that while Audet performed his work on the switchgear that day, access to the room was not controlled. It also failed to establish that the room contained exposed electrical parts at any time other than when Audet performed his work. Therefore, I am not satisfied that the actus reus was made out by the Crown, and I would dismiss the Crown’s appeal in relation to the s. 184(1) offences.
I. DISPOSITION
[90] For these reasons, I would allow the appeal in part. I would set aside the acquittals for the offences in relation to s. 190(4) of O. Reg. 213/91. I would uphold the acquittals for the offences in relation to s. 184(1) of the regulation. I would remit the issues not determined by the appeal judge in relation to the ss. 190(4) and 187 offences, namely, the respondents’ due diligence defences and sentence appeals, to another appeal judge of the Ontario Court of Justice for determination.
Released: April 14, 2022 “K.F.” “K. van Rensburg J.A.” “I agree. K. Feldman J.A.” “I agree. Coroza J.A.”
[1] A stab is a thick, conductive, metal bar located at the back of the switchgear cabinet. Input stabs transmit energy into the breaker, and output stabs transmit energy from the breaker into the building.
[2] Bondfield did not participate in the appeal to this court. The court was advised by Bondfield’s in-house counsel that “as a result of the ongoing Companies’ Creditors Arrangement Act proceedings and the terms of the Amended and Restated Initial Order dated April 3, 2019, Bondfield [would] not be participating in the appeal.”
[3] When “racked in”, conductive spring-loaded fingers on the breakers connect to stabs at the rear of the cabinet, allowing for the transmission of energy, while “racking out” ensures that the fingers are separated from the stabs at the rear of the cabinet, preventing the transmission of energy.
[4] The appeal judge suggested this was an argument made by Toromont. However, Toromont’s counsel on appeal to this court advised that the argument had in fact been raised by Bondfield’s counsel.
[5] The Ontario Electrical Safety Code is the Canadian Electrical Code, Part I (CSA C22.1-18), as amended by the Ontario Amendments to the Canadian Electrical Code Part I, C22.1-18: see Electricity Safety Code, O. Reg. 164/99, s. 1.
[6] In Proboard, the court determined whether a machine had an “exposed moving part” pursuant to s. 28 of Industrial Establishments Regulation, R.R.O. 1980, Reg. 692 (now s. 24 of Industrial Establishments, R.R.O. 1990, Reg. 851, enacted under the OHSA).
[7] Although Audet said there were various people in the electrical room when he was working on the switchgear cabinets, there was no evidence that any of these people were “not authorized by the supervisor in charge of the project”.