Court Information
Ontario Court of Justice
Date: April 7, 2015
Court File No.: Brampton 3160-11-8210
Parties
Between:
Her Majesty the Queen in Right of Ontario (Ministry of Labour)
— AND —
Maple Lodge Farms
Before: Justice Patrice F. Band
Reasons for Judgment released on: April 7, 2015
Counsel:
- Mr. W. Robinson for the Crown
- Mr. N. Smitheman & Ms. K. Potter for Maple Lodge Farms
Introduction
[1] Mr. Damian Mrazek, a maintenance electrician employed by Maple Lodge Farms, was injured when a large shipping door fell on him. After trial before Justice of the Peace M. Hudson, Maple Lodge Farms was convicted of breaching sections 25(1)(c) and 25(2)(a) of the Occupational Health and Safety Act ("OHSA") and its regulations.
[2] Maple Lodge Farms (hereinafter "the Appellant") appeals both of those convictions.
[3] For the following reasons, I would dismiss the appeals.
Factual Background
[4] Mr. Mrazek is a maintenance electrician. His responsibilities were, basically, to "fix, troubleshoot and maintain electrical equipment within Maple Lodge Farms." He and a millwright named Marco Guaiani had been sent by their supervisor to "check out" a door that would not close. The door was a large, roll-up loading door. It was powered by an electrical motor, which in turn, provided power to cables to lift and lower the door via a gearbox.
[5] The door was in a location in which both men had limited experience. The supervisor did not accompany them and at no time was anything put in place to physically block or prevent the door from falling.
[6] When they arrived, Mr. Mrazek "took a look at the controller just to make sure, looked in to make sure the P-L-C was powered up." He then "looked around to see what the problem was." When he went underneath the door, he saw "a cable hanging down from top of the door." It was then that the door fell on him and pinned him to the ground. He suffered a fracture to his leg, injury to his shoulder and was unable to work for almost a year.
Offences and Legislative Background
[7] As a result, the Appellant was charged with the following offences:
Count 1: Failing, as an employer, to ensure that the measures and procedures prescribed by s. 75(b) of Reg 851 were carried out, contrary to section 25(1)(c) of the OHSA; and
Count 2: Failing, as an employer, to provide information, instruction and supervision to a worker to protect the health or safety of the worker, contrary to s. 25(2)(a) of the OHSA.
Particulars for Count 2: the defendant failed to provide information, instruction and supervision to a worker regarding procedures for blocking a loading door when the worker performed maintenance and/or repairs on the loading dock door.
[8] Section 75(b) of Regulation 851 under the OHSA (the "Regulation") reads:
A part of a machine, transmission machinery, device or thing shall be cleaned, oiled, adjusted, repaired or have maintenance work performed on it only when,
(a) motion that may endanger a worker has stopped; and
(b) any part that has been stopped that may subsequently move and endanger a worker has been blocked to prevent its movement.
[9] Both counts are strict liability offences for which the defence of due diligence is available.
Grounds of Appeal
[10] The Appellant alleges that the trial justice erred in finding the Appellant guilty of Counts 1 and 2 beyond a reasonable doubt and that the trial justice also erred in rejecting the proposed defence of due diligence.
Appeal as to Count 1
[11] More particularly, in relation to Count 1, the Appellant contests the trial justice's finding that Mr. Mrazek had engaged in "a level of work" in relation to the door. The Appellant submits that the evidence disclosed only that the workers engaged in "inspection." Such a process, it is argued, falls beyond the scope of the terms listed in s. 75(b) of the Regulation. As a result, the trial justice impermissibly read-in the notion of "inspection" contrary to the legislator's intention. This decision, which involves the interpretation of the statute, is a question of law. It was incorrect and ought to be overturned.
[12] In oral submissions, Appellant's counsel also submitted that the verdict was unreasonable because it leads to an infinite regress – that is, that one must in all cases "block before blocking." Such a result being absurd, the verdict that spawns it must be unreasonable.
[13] Also in oral submissions, Appellant's counsel submitted, essentially in the alternative, that the trial justice could not have been satisfied beyond a reasonable doubt that a sufficient "level of work" had been performed, based on the evidence.
Appeal as to Count 2
[14] With respect to Count 2, the parties agree that the verdict must fall if the trial justice's findings on Count 1 are overturned. For this reason, the Appellant's factum focuses predominantly on the defence of due diligence. It is argued that the evidence of policies, safety rules and mandatory training and quizzes met the due diligence standard.
[15] In oral submissions, Appellant's counsel further submitted that the trial justice misapprehended the evidence of information and instruction that Maple Lodge Farms provided to its workers.
Standard of Review
[16] Section 120 of the Provincial Offences Act sets out the standard of review concerning convictions. It states that the appellate court
(a) May allow the appeal where it is of the opinion that,
(i) The finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.
(ii) The judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) On any ground, there was a miscarriage of justice; or
(b) May dismiss the appeal where.
(i) The court is of the opinion that the Appellant, although the Appellant was not properly convicted on a count or part of an information, was properly convicted on another count or part of the information.
(ii) The appeal is not decided in favour of the Appellant on any ground mentioned in clause (a), or
(iii) Although the court is of the opinion that on any ground mentioned in subclause (a)(ii) the appeal might be decided in favour of the Appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.
[17] The standard of review on questions of law is correctness. The standard of review on findings of fact is "palpable and overriding error." The test for unreasonable verdict is whether a properly instructed jury, acting judicially, could reasonably have rendered that verdict: see R. v. Prince Metal Products Ltd., [2011] O.J. No. 6450 at para. 20, citing Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Morrissey, 97 C.C.C. (3d) 193 (Ontario C.A.); R. v. Yebes, [1987] 2 S.C.R. 168; R. v. François (1994), 1 S.C.R. 6; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 (S.C.C.); R. v. G.G., 97 C.C.C. (3d) 362 (Ontario C.A.); R. v. W.R., [1992] 2 S.C.R. 122; and R. v. C. (R.), [1993] 2 S.C.R. 226.
[18] True questions of "mixed fact and law" attract the same standard of review as findings of fact – that is "palpable and overriding error" (Housen, supra, at para. 31). This more stringent standard also applies to due diligence findings (R. v. General Scrap Iron & Metals, 2003 ABCA 107, [2003] A.J. No. 390 at paras. 5 & 6 (C.A.)).
[19] A "palpable and overriding error" is an error that is "clear to the mind or plain to see," or "so obvious that it can easily be seen or known" (Housen, supra, at para. 5).
[20] On appeal, a court must remind itself that "it is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation…". They must be "read as a whole" (R. v. Morrissey, [1995] 22 O.R. (3d) 514 paras. 28-30 (C.A.)).
OHSA and Due Diligence
[21] The OHSA is a "remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers" (Ontario (Ministry of Labour) v. City of Hamilton, 58 O.R. (3d) 37 at para. 16 (C.A.)). It places an employer "virtually in the position of an insurer who must make certain that the prescribed regulations for safety in the workplace have been complied with before work is undertaken by either employees or independent contractors" (R. v. Wyssen, [1992] O.J. No. 1917 at para. 19 (C.A.)). These obligations – which also apply to supervisors when they make "bad judgment calls" – exist to protect not just the "prudent worker" but also those who are careless, reckless or who make mistakes (R. v. Stelco Inc., [1989] O.J. No. 3122 at para. 37 (Prov. Div.); Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769, [2007] O.J. No. 4339 at para. 24 (C.A.)).
[22] The defence of due diligence is available to an accused who demonstrates, on a balance of probabilities, that he or she (1) "reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent" or (2) "took all reasonable steps to avoid the particular event" (R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 at para. 60). It is an obligation that "must be linked to the particular circumstances of the breach" (Prince Metal Products, supra, at paras. 41 & 45).
[23] Due diligence entails not only the existence of a "good system" but also that "a person in charge is doing what he is supposed to do" (Stelco, supra, at para. 40). It requires not only that procedures be taught to workers but also "that there be reasonable supervision to ensure that procedures are being followed" (R. v. St. Mary's Cement Corp., [1999] O.J. No. 942 at para. 24 (Gen. Div.); see also R. v. St. Lawrence Cement Inc., [1993] O.J. No. 1442 at para. 32 (Gen. Div.)).
Reasons for Dismissing Appeal as to Actus Reus of Count 1
[24] The fundamental premise of the Appellant's argument is that Mr. Mrazek did not engage in any "repair or maintenance work." Mr. Mrazek's evidence-in-chief on this point is that he "took a look at the controller just to make sure, looked in to make sure the P-L-C was powered up" (Transcript of Proceedings, p. 52). In cross-examination, Mr. Mrazek's testimony was as follows (at p. 73):
Q. All right. Now after you checked on the electrics, you testified that you went and looked at the electrical aspect, then everything seemed to be working from an electrical perspective, is that correct?
A. Yeah, of what I can remember, yeah.
Q. Okay. And you do not do mechanical repairs.
A. No sir, I'm not a certified….
Q. All right, so after you did the electrical, you stood and then the – stood by the doors, right? And you were not doing any repair work at the time?
A. No, sir, no. I was just looking.
Q. For two reasons, one because that's not your job, you're mechanical, correct?
A. Correct
Q. And because you were merely inspecting, trying to determine what the problem was.
A. That's right.
Q. Fair statement? So you're not cleaning, you're not oiling, you're not adjusting, you're not repairing and indeed, you're not performing any maintenance at this stage, do you agree?
A. Correct.
[25] In my view, the trial justice's finding that "some level of work" took place was supported by the evidence. I see no plain or clear error in his finding that Mr. Mrazek's checks of the electrical system amounted to some work. That interpretation is all the more reasonable when one considers it in the context of all his testimony on the point. The cross-examination, which clearly ruled out repairs, maintenance work, adjusting, oiling, cleaning, was focused on what transpired after Mr. Mrazek had completed his checks.
[26] Having made that finding of fact, and in the manifest absence of any "blocking," it was not unreasonable for the trial justice to find that the actus reus was made out. A jury properly instructed and acting reasonably could have come to the same conclusion.
[27] I am not persuaded by the Appellant's argument that absurd results follow. The legislation is clear that blocking is required only where a worker is in danger.
[28] To the extent that the Appellant's oral submissions urged me to consider whether the amount of work performed was sufficient to support a conviction, I would respond in two ways. First, the legislation does not require that a minimum or threshold amount of work be performed before it is triggered. Second, it is not open to me, on appeal, to second-guess the weight to be assigned to the evidence (Housen, supra, at para. 23).
[29] For these reasons, I would dismiss the appeal as to Count 1. It is therefore unnecessary for me to consider the argument concerning statutory interpretation.
Reasons for Dismissing Appeal as to Actus Reus of Count 2
[30] The Appellant submits that the trial justice erred in finding that Maple Lodge Farms had failed to provide information, instruction and supervision to the workers when they performed maintenance and/or repairs on the loading dock door. The Appellant argues that the trial justice made two errors in his reasons. The first is that he misapprehended the evidence concerning the documents that contained Maple Lodge Farm's information, training and policies that referred to "blocking." The second is that his focus on the employee's recollection of those documents was misplaced. These arguments centre on the following passages at pp. 16-17 of the trial justice's reasons:
Amidst the many exhibits, there was only one document in which blocking was referenced. …
The evidence in this case shows the defendant provided training on general safety and provided policy and procedures with one reference to blocking equipment. Evidence also presented that the workers had a vague memory of training on blocking, no evidence of how the policy or blocking was reinforced and implemented.
Misapprehension of Evidence
[31] At the hearing of this appeal, I advised the parties that I had not received an Appeal Book and that, therefore, I had no access to copies of the exhibits filed. Based on the oral submissions of counsel, the written materials and the transcripts of witness testimony, it is apparent that up to three documents refer to blocking. The trial justice's reasons, in this narrow respect, are in error.
[32] I say "narrow respect" because in the absence of the exhibits, I am unable to determine the true extent to which these documents cover the topic of "blocking." But from a reading of the witness examinations, in which certain documents were put to them, and the parties' written materials, it appears that the mention of blocking was brief – as in the case of the Trade Safety Rules (Exhibit J) and the Quiz completed by an unrelated worker (Exhibit M), or that it was implicit – as in the Lockout Policy and Procedure (Exhibit N). It also appears that none of the training concerning blocking was clearly linked to the particular danger at hand. It may be that this explains the trial justice's numerical error.
Focus on "Vague Recollections"
[33] Upon reading the evidence of both Mr. Mrazek and Mr. Guaiani, one is left with the distinct impression that they had only vague recollections of the documents that were put before them, if they had seen them at all. That finding is accurate. But I take the Appellant's point to be that in focusing on the workers' recollections, the trial justice ignored the fact that both witnesses were apparently knowledgeable about the need to block. A fair reading of their evidence indicates that they were knowledgeable about the need to block before working in dangerous situations as a general matter.
[34] However, considered in the context of the reasons as a whole, these errors are of no real consequence. The trial justice found that the act was breached not only in respect of "information and instruction" but also concerning lack of supervision. As he stated at p. 16:
Further the section of the act under which this charge is laid, requires supervision as an integral component. In this case the supervisor received a report of defective door, dispatched two workers, whose evidence also state their unfamiliarity with working in the loading dock area. Without supervision, both attended and from the finding on count one, work commenced.
[35] The trial justice's finding that the workers were sent to an unfamiliar area without supervision is well founded in the evidence. It discloses no palpable and overriding error.
Reasons for Dismissing Appeal Concerning Due Diligence
[36] The trial justice found that Maple Lodge Farms (who called no evidence) failed to prove the defence of due diligence. That finding is entitled to deference.
[37] It discloses no palpable and overriding error. To the contrary, as I have stated above, it is well supported by the unchallenged evidence that the workers were sent to an unfamiliar area without supervision, as the trial justice noted at p. 17. It is also consistent with the authorities.
[38] The trial justice's conclusion that the legislation was breached in the circumstances as particularized in Count 2 was one that a properly instructed jury acting reasonably could also have reached.
Conclusion
[39] The appeal is therefore dismissed.
Released: April 7, 2015
Signed "Justice P.F. Band"