Court File and Parties

Ontario Court of Justice

Date: 2016-08-30

Court File No.: Sioux Lookout, ON 130271

In the Matter of: An appeal under clause 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

McKenzie Lumber Inc. Appellant

— And —

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

Before: Justice Peter T. Bishop

Heard: June 21, 2016

Reasons for Judgment Released: August 30, 2016

Counsel:

• Judy Chan, for the Crown
• Kevin Matthews, for the Appellant

BISHOP J.:

[1] Introduction

This matter comes before me by way of an appeal of a decision of Her Worship Justice of the Peace D.J. MacKinnon who convicted the appellant of one count of violating Section 75(b) of Ontario Regulation 851 RRO 1990, made under the Occupational Health and Safety Act on March 19, 2015 and imposed a fine of $48,000.00 on August 11, 2015.

Issues

[2] The Justice of the Peace erred in finding that Section 75(1) of Ontario Reg. 851 Industrial Establishment Regulation refers to a "physical blocking of the machines by means of a large solid piece of hard material".

[3] The Justice of the Peace misapprehended the facts failing to distinguish the hydraulic lock out procedure with the act of shutting off the hydraulic power.

[4] The Justice of the Peace imposed a sentence that was harsh and excessive in the circumstances.

Background

[5] The appellant, McKenzie Lumber Inc. operates a small sawmill in Hudson, Ontario which employs about 25 workers.

[6] The appeal results from an incident that occurred at the sawmill where a worker was injured on the job.

[7] On March 12, 2013 McKenzie Lumber Inc. was charged with failing as an employer to ensure that the measures and procedures prescribed by Section 75(1) of Ontario Reg. 851 RRO, 1990 as amended, or carried out in a workplace located at 120 Mill Road, Hudson, Ontario, contrary to Section 25(1)(c) of Occupational Health and Safety Act, as amended. In particular, the Crown alleged that the defendant failed to ensure that the side cantors of the DDM #1 Machine were blocked as prescribed.

[8] On March 12, 2013, shift supervisor, Earl Johnson was injured at the sawmill while maintenance was being performed on the machine. The machine DDM #1 is an industrial saw machine that cuts round logs into different lengths and sizes of boards.

[9] On the afternoon of March 12, 2013 the machine was temporarily shut down for maintenance. The operator of the machine, Glen Gordon turned the machine off, locked out the electrical systems and performed an initial cleaning of a portion of the machine.

[10] During the machine shut down, Earl Johnson found a piece of metal within the machine and began to investigate its origin. Mr. Johnson decided that the saws on the machine needed to be changed.

[11] Mr. Johnson directed Lloyd Landry, saw filer, to change the saw blades on the machine. In order to conduct the saw change, Mr. Landry ensured that the machine was off and applied his lock to the electrical system. However; in order to gain access and change the saw blades within the machine, the hydraulics were kept on during the saw blade change.

[12] The machine is approximately 30 metres long and is capable of being controlled by an operator's work station in the control room, and a maintenance field control box. In order to clean the saw tower, the hydraulics, a large clam-shell type cover is raised allowing initial access to the saw blade area. A metal pin is inserted in the side of the clam-head in order to protect against the obvious risk of the clam-head falling if there ever were a loss of hydraulics. As well, two large side heads (or cantors), move away from one another on each side of the saw tower. The clam-head is parallel to the conveyor belt, whereas the side-heads are perpendicular to the conveyor belt. The side-heads require hydraulics in order to move into "open" or "closed" position and are impossible to move without hydraulic power. The area under the clam-head, in between the side-heads, is only accessible during maintenance procedures. The electrical breakers on the hydraulics shut off are located on a master control panel a short distance away from the clam-head and side-heads. As well, the field control box is located roughly 10 feet from the saw tower and controls the movement of the clam-head and the side-heads. At the time of the incident, there was no line of sight from the field control box to the area between the side-heads.

[13] Pursuant to the Safe Operating Procedures for this machine, no one should be between the side-heads if the hydraulics are still on. The only exception to this rule is the saw filer who requires hydraulics in order to perform maintenance duties between the side-heads. Both Mr. Landry and Mr. Johnson were familiar with these policies.

[14] During the saw change, Mr. Landry and Mr. Johnson discussed the origin of the piece of metal that was found in the saw. Mr. Landry advised Mr. Johnson to speak with a millwright to deal with the problem. After Mr. Landry had completed the saw change, he proceeded to the field control box to close the side-heads and the clam-head. Mr. Landry was unaware that Mr. Johnson had ventured into the area between the side-heads. And Mr. Landry closed the side-heads, Mr. Johnson received crushing injuries to his left arm as he had reached in between the side-heads attempting to determine the origin of the piece of metal that he had found.

[15] At trial, an Occupational Health and Safety inspector confirmed that the hydraulic powers required to open and close the side-heads on the machine and that Mr. Johnson would not have been injured had the hydraulics been turned off to prevent the movement.

[16] With this machine, lockouts must be initiated in the proper order.

[17] The physical act of shutting off hydraulic power does not necessarily require a person to engage in a lockout procedure just as the shutting off the electric breaker does not necessarily require a lockout procedure.

[18] Here, the appellant submits that the Justice of the Peace failed to distinguish between "hydraulic lockout procedure" and the act of shutting off hydraulics. Shutting off hydraulic power, whether used in conjunction with the lockout procedure or not, eliminates the risk of the side-heads moving and endangering a worker.

[19] The appellant also submits that the fine imposed of $48,000.00 is harsh and excessive in light of the fact that the appellant had a mechanism in place to eliminate the possibility of movement of the side-heads and that the appellant had no previous convictions of Health and Safety offences.

[20] In the alternative, the appellant is asking that if the appeal is not dismissed then the appropriate sentence range is a fine between $10,000.00 and $20,000.00.

Position of the Crown

[21] The Crown identifies four issues:

(a) What is the standard of review to be applied to the verdict of this Court.

(b) Did the trial Justice err in her interpretation of blocking in Section 75(1) of the Industrial Regulation, to mean a physical blocking of the machine.

(c) Did the trial Justice of the Peace commit a palpable and overriding error in her apprehension of the evidence and facts.

(d) Did the trial Justice err in the sentence imposed.

Standard of Review

[22] The Appeal Court may set aside a conviction if:

1. The verdict is unreasonable or cannot be supported by the evidence.

2. Where there is a wrong decision on a question of law.

3. Where there has been a miscarriage of justice.

[23] Further, the Appeal Court can dismiss the appeal where there has been no substantial wrong or injustice.

[24] The standard of review requires that the Appeal Court examine the correctness of the decision. In order to overturn a case of mixed fact and law, there must be a palpable error. In order to overturn, the verdict must be unreasonable and not supported by the evidence.

[25] The Appeal Court must show deference to all findings of fact and credibility or inferences made by the Trial Court unless this Court is satisfied that the findings were as a result by a palpable and overriding error.

[26] The Appeal Court must not set aside the conviction merely because it would have come to a different conclusion. If the trial Justice made no legal errors and the findings can be supported by the evidence, the conviction must stand.

[27] The Crown submits that the Justice of the Peace's interpretation of Section 75(b) was correct in law and that there was no palpable overriding error in her apprehension of the facts.

[28] The principles of statutory interpretation require that the words of an Act are to be read in their entire context and their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of parliament.

[29] The Crown urges the Court to read into the natural meaning which appears where the provision is simply read through. The operative words are "blocked to prevent its movement". It is conceded that "blocked" or "blocking" are not defined in the Occupational Health and Safety Act or the Regulations.

[30] The Justice of the Peace made appropriate use of the Oxford English Dictionary to suggest a range of possible meanings of "blocked" or "blocking" and that her finding under Section 75(b) refers to a physical blocking is legally correct based on a natural reading of the entire provision in light of the purpose of the Occupational Health and Safety Act.

[31] The Crown submits that the appellant's position that "blocking" does not have to be physical would require a strained interpretation of the provision.

[32] The Crown's position is that there is only one principle of modern statutory interpretation namely that "the words of an Act are to be read in the entire context in a grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, the intention of parliament and that there is no ambiguity in Section 75.

[33] The trial Court did not specifically consider the broader context in addressing the issue of "blocked" or "blocking" in related statutes and regulations. The difference in the wording of Section 74 and Section 75 is referring to machinery that has been elevated and it would be absurd to interpret those provisions of not requiring a physical component on the basis of the absences of "securely and solidly".

[34] The Occupational Health and Safety Act is a public welfare statute the purpose of which is to guarantee to a minimal amount of protection for the health and safety of workers.

[35] The Ontario Court of Appeal has consistently held that the provisions of remedial statutes should be liberally interpreted so as to maximize protection for workers, not that every term or word in provision should be broadly interpreted without regard to the consequence of the safety of the worker. If the appellant's position is accepted this would intrinsically put workers at risk.

[36] The Crown states that in every case the Crown must only prove the actus reus of the offence and there is no requirement for the Crown to prove that the machine in question was capable of being blocked.

[37] The Crown submits that there has been no palpable overriding error or in the Justice of the Peace's apprehension on the evidence about blocking. The Trial Court found that Section 75(b) required a solid piece of material, the implication being that anything short of that including the lockout would be found in another section of the regulation or shutting off hydraulic power would not suffice. Thus in any distinction there may be between a formal lockout procedure for the hydraulics and a procedure shutoff or disconnecting of the hydraulic power was not relevant to the Justice's conclusion. The evidence at trial disclosed that witnesses were using the terms interchangeably as turning of the hydraulics and hydraulic lockout.

[38] The Trial Court's decision is entitled to great deference. This Court should not interfere unless it is demonstrably unfit.

Decision

[39] Having heard all of the evidence, I am finding that the appellant has presented an interesting technical issue on the appeal. His factum and submissions are well prepared and articulated.

[40] I am finding on the evidence that Justice of the Peace MacKinnon made no error in her interpretation the words "blocked" whether it's a verb or a noun. That Her Worship's interpretation is consistent with the cases of International Railway v. Canada Attorney General, 2014 SCC 40, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19; Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769.

[41] The Court must read the legislation in its entire context and be consistent with other provisions in the same Act. The Justice of the Peace reviewed the language and ordinary meaning of the word "blocked" and "blocking" and addressed the purpose of those words within that language.

[42] The distinction between a verb and a noun is artificial and the Justice of the Peace found that turning off the hydraulics was not a physical block.

[43] "Block" is not defined in the legislation although the Justice of the Peace used a dictionary definition with an expansive range of meanings capable of being interpreted and applicable to the context in which the incident occurred. The Justice of the Peace cannot just pick one definition and stop at that juncture.

[44] The Justice of the Peace went further in her analysis and found that blocking meant some physical component to the interpretation of the legislation.

[45] The context of the language in Section 74 and Section 75 is different and applies to different machinery and there is no principle stronger than one must look at the whole context of the legislation to protect workers. There is no ambiguity in the meaning of the word "blocked" or "blocking" when examining it in the context of public safety.

[46] I am finding that there was no palpable error committed by the Justice of the Peace with the purpose of Section 75 is to have a reduction in the harm to workers.

[47] Had I heard the trial I may have come to different conclusion but that is not my prerogative on appeal. I did not hear the evidence and assess the credibility of witnesses.

[48] Similarly, the decision of the Justice of the Peace on sentence determination must be given great deference and I am not going to interfere with that although I may have been convinced having heard the evidence; a small number of employees and no previous infractions to have reduced that, but the Justice of the Peace decided in her wisdom to a fine of $48,000.00 and I am not going to interfere with that.

[49] In the circumstances I thank both counsel for their excellent preparation and the appeal is dismissed; both as to conviction and sentence.

Released: August 30, 2016

Signed: Justice Peter T. Bishop