Court File and Parties

Date: June 5, 2017

Information No.: 14-5145

Ontario Court of Justice

Her Majesty the Queen

v.

Matcor Automotive Inc.

Reasons for Appeal

Before the Honourable Justice Paul F. Monahan

on June 5, 2017, at Brampton, Ontario

Appearances

D. McCaskill – Counsel for the Crown

C. Edwards – Counsel for Matcor Automotive

Introduction and Overview

This is an appeal by the defendant Matcor Automotive Inc. ("Matcor") from a sentence imposed by Justice of the Peace D. Florence on August 17th, 2016. The sentence was imposed after a six-day trial (five days plus sentencing submissions) and after which the Justice of the Peace found the defendant Matcor guilty of three offences under the Occupational Health and Safety Act R.S.O. 1990, c. O.1 ("OHSA").

The penalty imposed was $90,000 for each of the three offences for a total sentence of $270,000 plus victim assistance surcharge and court costs. Two years was given to pay the fines. This appeal was heard on April 21, 2017 and reserved to today, June 5th, 2017. In these Reasons for Judgment I will be making reference to four documents: the Reasons for Judgment the Justice of the Peace dated February 10, 2016; the sentencing submissions before the Justice of the Peace dated June 14th, 2016; the Reasons for Sentence dated August 17, 2016; and the factum of the appellant Matcor.

Background Facts

Matcor is a manufacturer of metal parts for the automotive industry. On January the 15th, 2013 there was a problem with a robotic cell at Matcor's facilities in Brampton. A maintenance worker Davy Valentini was instructed to fix the tooling and the overheating electrode associated with a robotic cell. The Justice of the Peace found that workers were expected to make a judgment call about how to fix equipment. If it was a "quick fix" the practice was not to lock out/tag out with respect to the robot meaning power would not be locked out from the robot. If it was a longer fix (an hour) the worker would lock out/tag out.

Mr. Valentini thought it was a quick fix and so he did not lock out/tag out. He positioned himself on a light curtain next to a conveyer belt and the tooling. He felt pressure on his back and saw the robot pressing against him on his back. Mr. Valentini suffered a serious injury. He was rendered a paraplegic.

Charges and Conviction

Arising out of this incident, Matcor was charged with the following offences:

i. Count One: Failing as an employer to provide information, instruction and supervision to protect the health and safety of a worker contrary to s. 25(2)(a) of the OHSA. In particular, Matcor failed to provide information, instruction and supervision to a worker with respect to working near robotic equipment;

ii. Count Two: Failing as an employer to ensure that the measures and procedures prescribed by s. 75(a) of Ontario Regulation 851 were carried out in a workplace, contrary to s. 25(1)(c) of the OHSA. Section 75(a) of the regulation requires that:

a part of a machine, transmission machinery device or thing shall be cleaned, oiled, adjusted, or have maintenance work performed on it only when a motion that may endanger a worker is stopped; and

iii. Count Three: Failing as an employer to ensure that the measures and procedures prescribed by s. 76 of Ontario Regulation 851 were carried out in a workplace contrary to s. 25(1)(c) of the OHSA. Section 76 of Regulation 851 requires that:

(a) where the starting of a machine, transmission machinery, device or thing may endanger the safety of a worker, control switches or other control mechanisms shall be locked out; and

(b) other effective precautions necessary to prevent any starting shall be taken.

Matcor pled not guilty in respect of all three charges. It defended each charge on a number of bases including the defence of due diligence. After five days of evidence, the Justice of the Peace found Matcor guilty of all of the charges.

After hearing detailed sentencing submissions, she imposed a $90,000 fine on each count and a total sentence of $270,000 plus victim assistance surcharge and court costs.

Positions of the Parties

It was the submission of the Crown before the Justice of the Peace that the court should impose a total sentence on all three counts of in the range of $175,000 to $225,000. There was no breakdown proposed to the Justice of the Peace as to how the $175,000 to $225,000 should be allocated among the three charges.

It was the submission of Matcor before the Justice of the Peace that she should impose a total sentence of $120,000 to $150,000. As counsel for Matcor put it, "Roughly around $40,000 or somewhat more in relation to each of the three counts."

On appeal before this court, the positions of the parties evolved during the course of the oral argument of the appeal. The appellant Matcor initially took the position in its factum that the court should vary the sentence and impose a sentence of $120,000 to $150,000 in line with its original submissions before the Justice of the Peace.

The position of the Crown was as follows: the Crown did not file a factum on the appeal because Matcor did not file its factum until three or four days before the appeal. The Crown indicated that it was prepared to proceed without a factum and the court indicated that it was prepared to hear the appeal on that basis. I note as well that Crown counsel on the appeal was not the Crown at trial.

In its oral submissions on the appeal, the Crown submitted that there were errors in principle, although I must say it is not clear to me what specific errors the Crown says the Justice of the Peace made. He did submit that there were certain factors she failed to take into account, which factors he did not specify and that she was wrong to simply allocate $90,000 to each count without considering the severity of each offence. The Crown initially submitted on the appeal that this court should impose a varied sentence of $175,000 to $225,000, namely the Crown's original submission before the Justice of the Peace. The Crown felt it would be somewhat unfair if it were to advocate for the $270,000 imposed by the Justice of the Peace when this exceeded the Crown's submissions at trial. I asked the Crown if it would be an error for me to dismiss the appeal and to leave the sentence at $270,000 to which the Crown said no, it would not be an error for me to do so.

The Crown's position, and that of Matcor, changed during the hearing of the appeal. After a lunch break, Crown counsel said that he and Matcor counsel had discussed the matter and that they were both jointly requesting that I vary the sentence and impose a sentence of $180,000 in total.

Crown Counsel initially submitted that it should be $60,000 for each count but later submitted it should be $100,000 for count one and $40,000 for each of count two and three.

Both counsel agreed that the $180,000 joint position was not a joint submission which the Court was obliged to accept unless it was contrary to the public interest, as would be the case with a joint submission before the sentencing judge (see R. v. Cook, [2016] 2 S.C.R. 104).

Upon learning of the joint position of the parties advocating for a $180,000 fine the court indicated that it would need to hear the appeal in any event as I would not and could not vary the sentence unless, among other considerations, there were errors in principle committed by the Justice of the Peace. I proceeded to hear the submissions of both parties.

I will be examining the detailed grounds for appeal below. I note at this stage that one of the grounds for the appeal put forward by the appellant Matcor was that the sentence imposed by the Justice of the Peace was "demonstrably unfit" as it was outside of the acceptable sentencing range.

I asked Crown counsel if he agreed with the demonstrably unfit characterization of the $270,000 sentence and he said he did not agree that it was demonstrably unfit. Rather, he advocated for the $180,000 variation on the basis that other alleged errors were made by the Justice of the Peace.

Before turning to the grounds of appeal put forward by Matcor, I consider that it bears noting that the Justice of the Peace imposed a sentence which exceeded the sentence sought by both the Crown and the defence without telling the parties that she was considering doing so. Neither the Crown nor the defence advanced this point as a freestanding ground of appeal. Crown counsel helpfully drew my attention to a recent endorsement of the Ontario Court of Appeal in R. v. Rosenberg 2017 ONCA 313 where the Court of Appeal noted that before a court "jumps" a sentencing submission of the Crown, the defence should be permitted to make further submissions if it wishes. However, the failure to afford the defence such an opportunity does not mean that the sentence imposed is unfit. The question of fitness remains the central question on a sentencing appeal.

Legal Principles and Framework

In a sentence appeal under the Provincial Offences Act, RSO 1990, c. P. 33, the court must consider the fitness of the sentence appealed from and may vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted (see section 122 Provincial Offences Act RSO 1990 c. P. 33).

An appellate court is not simply to substitute its own view of the sentence it would have imposed. Considerably deference should be given to the sentencing judge who has heard the case.

The appeal court should only interfere if the sentencing court has made an error in principle or imposed a sentence outside of the acceptable range (see R. v. Shropshire, [1995] 4 S.C.R. 227 at para. 46; R. v. Rezaie, [1996] O.J. 4468 (C.A.) at paragraphs 20-21).

The Ontario Court of Appeal noted further in R. v. Cotton Felts, (1982), 2 C.C.C. (3d) 287 at p. 24 and quoted with approval the Court of Appeal's decision in R. v. St. Lawrence Corporation (1969), 20 C.R. 305 at 327 that a fine is "peculiarly in the discretion of the trial judge – a discretion with which an appellate court should not lightly interfere."

It is well established that in imposing a fine in a regulatory environment, the court should consider a "complex of considerations including the size of the company involved, the scope of the economic activity in issue, the extent of the actual and potential harm to the public and the maximum penalty prescribed by statute." Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence (see R. v. Cotton Felts, supra, at paragraph 19).

The court accepts that proportionality and totality are principles of sentencing that also apply in the regulatory context (see R. v. Terroco OCO Industries Ltd 2005 ABCA 141 at paragraphs 35-37; and R. v. Sinclair, [2009] O.J. 5318 (C.J.) at paragraphs 123-124).

Errors Alleged by The Appellant Matcor

The appellant Matcor raises four alleged errors by the Justice of the Peace as follows:

1. Not applying the principles of proportionality and totality;
2. Making inferences that were not supported by the evidence;
3. Placing undue emphasis on a prior conviction;
4. Imposing a sentence outside of the range of acceptable sentences.

I will examine each of these alleged errors in turn.

1. The First Error Alleged: Not Applying The Principles of Proportionality and Totality

The defendant's submission is set out in more detail in its factum. The defendant Matcor, the appellant on this appeal, submits that the Justice of the Peace failed to assess Matcor's relative culpability for the offences including by ignoring available due diligence evidence in mitigation of penalty. Matcor alleges that the Justice of the Peace failed to take into account certain pre and post-incident steps in arriving at the sentence. The defence submits further that the Justice of the Peace, by applying the same penalty to each count, failed to take into account totality.

The defence submits that the degree of carelessness is a factor in sentencing and I agree with that submission. In my view, the Justice of the Peace did not ignore the due diligence efforts of the defendant in sentencing. Her focus, correctly, was on the essence of what Matcor did wrong in this case. There was no dispute that Matcor had safety procedures in place. Of course it did.

The Justice of the Peace's concern in her Reasons for Judgment and in her Reasons for Sentence was, among other things, that notwithstanding that safety policies were in place, the training and supervision of workers was insufficient and there was a culture where noncompliance with safety requirements was expected and condoned by Matcor. Further, it was aggravating that the reason for failing to adhere to safety standards was influenced by the pressure for production.

I will briefly review some of the observations of the Justice of the Peace in her Reasons for Judgment so as to understand the context for her ultimate decision on the charges and the sentence. I emphasize that this is a sentence appeal only and that Matcor must persuade the court on the sentence appeal based on the facts as found by the Justice of the Peace. To the extent that the Crown seeks a variation in sentence, they are in the same position. I note that those facts included the following:

Count One Findings

As concerns count one, the Justice of the Peace said as follows:

It is clear from the evidence that no information about an unsafe zone (the zone in which the robot is coming to a stop may extend into) and this was evidence given by Ron Pearsall... Information regarding maintenance override or instruction of how to access maintenance override was not provided. Ron Pearsall's evidence is that this is a standard design feature for Matcor cells. This information was integral to his decision not to lockout/tag out because he believed if he did not he would not have water flow. It is not disputed that he was directed by supervisor Dan Singh... There was a lack of information and instruction on the particulars of this new cell, cell 187 which had been subject to a pre-start in 2011 and Matcor acted contrary to Ron Pearsall's recommendation that operators and maintenance workers be trained on this new cell.

As concerns count one, the Justice of the Peace had the following to say about training and the practice of the "quick fix":

The complicity of supervision and maintenance work being done contrary to the occupational health and safety act and company formal policy... The issue is this: In the circumstances on January 15th, 2013 was it the kind and type of information and instruction needed to prove the defence due diligence and reasonable care? To fully consider this the everyday circumstance expectation must be taken into consideration. I accept the evidence of Davy Valentini and Daniel Singh that the maintenance workers were expected to make a judgment call about how to fix the equipment. If it was a quick fix they wouldn't lockout/tag-out. If it was a longer fix, an hour, then the lockout/tag-out would occur. On January 15th, 2013, Davy Valentini understood that it would be a quick fix.

As concerns count one, the Justice of the Peace said as follows:

Davy Valentini needed the particulars of the unsafe zone. Even without the culture of personal judgment, Davy Valentini needed to know in the circumstance of his work that a maintenance override was available. In the culture of personal judgment call where it was expected and condoned by the supervisor, the risk, the hazard was foreseeable. On a continuum of supervision there was little and it was ineffective. The supervisor must put effect to the policies day by day. General health and safety training doesn't establish due diligence relating to the specific hazard at issue.

Count Two Findings

As concerns count two, the Justice of the Peace said:

The evidence of complicity of the supervisor, Dan Singh, in breaching the regulation for motion to be stopped by accepting and condoning individual maintenance worker judgment calls as to how work would be done is compelling and is accepted by this court. Implicit in the quick fix was this fact: Not all motion that could endanger a worker was stopped. Dan Singh identified the fix on January 15th, 2015 as a quick fix. The court is persuaded by the case law where the culture of discretion led the Justice to determine that the culture could not support the defence of due diligence.

Supervision and Production Pressure

As concerns the role of Daniel Singh, the supervisor and the pressure for production, the Justice of the Peace said the following:

Daniel Singh had responsibility for all maintenance workers covering three shifts. I have made reference as they relate to counts one and two about the supervision and will reiterate them only to this extent. Supervision occurred if he had time and he did not have much. He was the supervisor for all shifts. He worked from 5 to 6 a.m. to 5 to 6 p.m. Daniel Singh's evidence about his supervision is this, 'If time permits, I do; sometimes I don't.' He expected maintenance workers to assess the time that was needed for a repair and the required reach to fix the piece and then to determine whether lockout/tag-out would occur. He acknowledged the policy of lockout/tag-out and spoke of lockout/tag-out's importance but did not supervise to enforce. There were no records. There was no plan program of supervision to ensure compliance. What the evidence does show is that the supervision was complicit in breaching health and safety policy and regulation. The workplace was identified by Arun Dhanaraj's as pressured and for him that pressure was from lead hands and the supervisors to increase production, 'he' being an operator and he left Matcor because of it. Davy Valentini identified downtime as a concern on January 15th, 2013 and the court understood that the choice of approach that day, the quick fix, was influenced by this pressure for production. Daniel Singh gave an evasive response to the topic of pressure. It is only fair to acknowledge that there will be pressure in the workplace to accomplish. This is common sense and common knowledge. The issue, the breach of regulation because of pressure, is what seems to be a factor for Davy Valentini in evidence and is accepted by this court. The objective standard of the reasonable person in this circumstance of culture of each maintenance worker determining whether compliance would occur based on timeframe and reach could only conclude that supervision did not occur. It was not a matter of observing every single task performed but an absence of supervision that established that lockout/tag-out was to occur on each and every task. This was not done. The corollary is that enforcement never occurred. Any reasonable person in the circumstance would foresee hazard within this environment.

A similar point is made where the Justice of the Peace said that Mr. Valentini "was participating as expected by supervision in the pursuit of corporate goals of production." I understand that the appellant Matcor argues on this appeal that this inference drawn by the Justice of the Peace was not available to her on the evidence at trial to which I respond in two ways: First, this is a sentence appeal and it is not open to Matcor to challenge facts and inferences from evidence in the original Reasons for Judgment. Second, even if Matcor could challenge such inferences, and it can't, the inferences drawn actually were available to the Justice of the Peace on the evidence.

The Justice of the Peace released reasons for judgment on February 10th, 2016. She heard extensive sentencing submissions on June 14th, 2016. She gave her reasons for sentence on August 17th, 2016. She summarized part of the case against Matcor in her reasons for sentence when she said:

Systems were on paper, but effective supervision was absent, lacking to the extent that supervision imposed an expectation of non-compliance with policy by what was understood as "shop floor" practice of the "quick fix". There was in-house health and safety leadership and authority with specialized training in hazard recognition who knew nothing of the particular hazards presented by robotic equipment. A specially trained hazard recognition management person in evidence gave no evidence of asking even in a preliminary way for Mr. Pearsall of hazards of robotic equipment that maintenance personnel should be informed about.

The defence submits that there was no proper regard to the "pre-incident" steps taken by Matcor. The Justice of the Peace did refer to the pre-incident steps when she referred to "systems on paper" and she also referred to the "defence of due diligence not established" in her reasons for sentence. Further, she heard five days of evidence and detailed sentencing submissions. She did not need to further enumerate in her reasons for sentence the so-called pre-incident steps. The pre-incident steps were a centerpiece of the due diligence defences which were front and centre at trial. The Justice of the Peace rejected the due diligence defence in relation to each count. She clearly had these steps in mind when she imposed her sentence.

The Justice of the Peace's principle concern was that there were "systems on paper" which were not followed in practice. There was this unwritten practice, which encouraged the "quick fix" meaning you don't need to follow the rules if you can fix it quickly and that this approach was condoned and expected.

The defence takes issue with the "expected" aspect of the Justice of the Peace's reasons for sentence. As I have said above, it is not open to the defence to have a bonafide concern in this regard on a sentencing appeal where the facts are not in issue. The Justice of the Peace found as a fact that this approach was "expected and condoned" by the supervisor at Matcor.

Allocation Among Counts

Both the Crown and the defence say that the Justice of the Peace erred when she gave the same penalty for each count. The defence argues further that there was significant "factual and legal overlap" between these charges and that the Justice of the Peace failed to take this into account. The Crown on the appeal suggested the same point. The trouble with this submission is as follows: Neither the Crown nor the defence said anything about it at trial. Matcor itself sought precisely this type of treatment when it made its sentencing submissions before the Justice of the Peace and sought a $40,000 fine with respect to each count.

Further, before the Justice of the Peace, Matcor made no distinction between the three counts and suggested no overlap. For its part, the Crown made only a global submission before the Justice of the Peace and did not ask that she treat the counts differently. The Crown submitted on sentencing that Matcor was guilty of "three separate wrongs".

It is hardly fair for the Crown to now say that the Justice of the Peace erred in this regard when it made no such submission before her. Further, even on appeal, neither the Crown nor the defence said that any of the charges should be stayed on the basis of the Kienapple principle derived from R. v. Kienapple, [1975] 1 S.C.R. 729.

I note as well that when the Crown first proposed a resolution of this appeal on the basis of a total fine of $180,000, the Crown initially submitted that I should divide it up $60,000 per count. That position changed later in the Crown's submissions on appeal when the Crown submitted that the $180,000 should be divided up $100,000 on the first count and $40,000 on each of the second and third counts.

Putting aside the various submissions of the parties to the appeal and at trial, it seems to me that the Justice of the Peace was obliged to do at least two things on the question of the fines imposed as concerns this alleged error.

She was obliged to ensure that the $90,000 she imposed per count was a fit sentence for each count. She was further obliged to ensure that the total sentence was a fit sentence. This is the question of totality. In my view, the various submissions of the Crown and Matcor at trial and on appeal helped demonstrate that there is no one way to arrive at a fit sentence in this case.

I will discuss the case law and why the sentence in this case was a fit one further below. I have concluded that the Justice of the Peace did what she was obliged to do and committed no error when she imposed a sentence of $90,000 per count and a total sentence of $270,000. There were three separate wrongs and there was nothing wrong with imposing the same fine for each. They were all serious offences. The total sentence was fit in my view.

Post-Incident Steps

Matcor also argues in furtherance of its argument that the Justice of the Peace failed to observe the principles of proportionality and totality when she failed to take into account certain post-incident steps of Matcor which Matcor says were mitigating and ought to have been taken into account and presumably lead to a lower overall sentence.

In order to consider this submission, one must first consider the Ontario Court of Appeal's decision in R. v. Flex-n-gate (2014), 2014 ONCA 53, 119 O.R. (3d) 1 (C.A.). In that case, the Court of Appeal made it clear that a sentencing court under the OHSA has no discretion to consider post-incident steps which merely bring the offender in compliance with the law. However, where the post-incident corrective action goes beyond what was required then the court may take that additional action into account in sentencing (see paragraphs 28-32 of the Flex-n-gate case).

The appellant Matcor submits that it took post-incident steps beyond what it was obliged to do. The post-incident steps fall into two categories:

(1) what can be described as health and safety program steps; and (2) the company's contribution towards a vehicle for Mr. Valentini.

As concerns the first point, the health and safety program, the appellant Matcor says that it had a professional engineer review the robotic cell in question and he stated the system met or exceeded all applicable standards for robotic system safety design. In my view, this step does not amount to a post-incident step beyond what was required. A man was paralyzed by a robotic cell and afterwards the company looked at the cell and said it was safety compliant. This does not answer the fact found by the Justice of the Peace that Matcor had acted contrary to the same engineer's recommendation prior to the accident that operators and maintenance workers be trained on this new cell.

Matcor submits further that it had lockout instructions prepared by a professional engineer for each robotic cell, trained workers on each and posted instructions at each cell. I hardly consider that training workers to access robotic cells safely goes beyond the legal requirements that Matcor was obliged to follow. The failure to properly train workers, including Mr. Valentini was one of the major findings against Matcor.

Counsel for Matcor at the time of the original sentencing submissions before the Justice of the Peace said as follows in respect of the same post-incident steps it refers to on appeal, "I respectfully submit that the following is above and beyond what's required but I can see a characterization possibly put on it that it's what was required to comply." In my view, Matcor fairly recognized at the sentencing submissions that one fair interpretation of what had occurred was that the post-incident steps were merely compliance with what was required. I am certainly of that view. I note as well that the Justice of the Peace in her reasons for sentence specifically acknowledged that she was aware of the re-training that had been done by Matcor post-incident.

Finally, on the subject of the post-incident steps, let me address the question of the vehicle purchased by Mr. Valentini which permitted him to drive it notwithstanding his paralysis. As I understand it, the workers at Matcor and Mr. Valentini's family raised money to buy the vehicle for Mr. Valentini and Matcor "made a significant contribution" to the purchase.

I make two points regarding the contribution to the modified vehicle. First, the Justice of the Peace was aware of this act by the company when she imposed the sentence. Secondly, I hardly consider that where a company makes a gift of some unstated amount towards a modified vehicle, it is somehow an error in law when this does not result in a lower fine for the company whose negligence caused the need for the vehicle in the first place.

2. The Second Error Alleged: Making Inferences Not Supported By the Evidence

The appellant Matcor devoted a significant part of its factum and its oral argument to the submission that the Justice of the Peace made inferences of fact not supported by the evidence. This criticism is directed at the Justice of the Peace's original reasons for judgment which in turn supported the reasons for sentence. To be clear, Matcor does not argue that the Justice of the Peace referred to facts in her reasons for sentence which she had not found in her original reasons for judgment, a criticism which would be a fair point on a sentence appeal if that approach was taken.

In my view, it is trite law that on a sentence appeal it is not open to Matcor to challenge facts or inferences from facts. Facts and inferences from facts can only be disturbed on a full appeal when the trial judge makes some palpable and overriding error (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235).

Matcor could have sought to appeal the findings of guilt against it. It did not. On a sentencing appeal it cannot challenge inferences from fact or evidence made by the Justice of the Peace in her original reasons for judgment.

3. The Third Error Alleged: Undue Emphasis Placed On A Prior Conviction

The appellant Matcor submits that the Justice of the Peace weighed a 2004 prior conviction "quite heavily" and that this was improper. The appellant further submits that the Justice of the Peace in effect, imposed a sentence in this case based on injuries suffered in connection with a 2004 prior conviction which related to events from 2002. In my view, the Justice of the Peace committed no such error and I will explain why.

The appellant Matcor submitted in its original sentencing submissions that the prior conviction was a dated conviction. However, Matcor also submitted that the prior conviction "was a factor of some significance but it is certainly not a fresh, recent conviction, I guess, I would say". It is my view that the Justice of the Peace did no more than what Matcor asked it to do, to treat the prior conviction as having some significance but not to give it undue weight in her imposition of the sentence.

Turning to what the Justice of the Peace said about the prior conviction, she looked at the prior conviction in order to attempt to gain a better understanding of the economic size and strength of Matcor given the very limited economic/financial information the appellant placed before the court at the time of the sentencing submissions. The Justice of the Peace said:

The principles governing the imposition of fines from this type of offence is a complex of considerations, including, and in this I will make reference to the fine from June 2004 that was jointly submitted regarding Matcor, the reference is not a consideration as an aggravating factor. It is a comparison of Matcor then and now. So the consideration is the size of the corporation. Matcor has two facilities, 770 people, the Steeles facility 650, an increase of 250 since the June 2004 guilty plea.

As the foregoing passage demonstrates, the Justice of the Peace looked at the prior conviction to shed light on the economic/financial status of Matcor. She was concerned that "nothing was provided to the court to give the court context to determine the appropriateness of fine, to be confident that the fine is not in a category of slap on wrist".

There was nothing wrong with the Justice of the Peace looking at the prior conviction to give her information about the state of Matcor in 2004 in order to compare it to 2013 at the time of the incident before her and to 2016 for the time of her sentence.

Further, the Justice of the Peace looked at the prior conviction and sentence as part of her analysis of determining a fit sentence in this case. In arriving at a fit sentence, the Justice of the Peace had to consider case authorities put before the court in other cases. She did this and specifically referred to the "comparators given to the court".

In addition, she looked at the prior conviction in 2004 and the fine imposed in that case as one factor and one comparator in arriving at the sentence in this case. She was fully aware that the 2004 conviction was dated. She knew the facts of that case involved some metal plates falling on a Matcor worker and causing fractures to his right leg and left ankle. She noted that the worker in that case "fully recovered and returned to work".

She noted that in the case at bar "there is no fully recovery. Paralysis occurred that has totally altered Mr. Valentini's life."

It is in this context that she stated that she considered "the physical impact of the incident on the victim in this case". She was in effect considering as one factor in her comparators analysis of arriving at a proportionate sentence in the case at bar that in 2004 this very company paid a $55,000 fine pursuant to a guilty plea involving one count which entailed no permanent injury to a worker. She considered this as one factor in arriving at the fit sentence in the 2013 incident.

In addition to the case authorities involving other cases, the defence of due diligence not made out, the need for deterrence and the need to brand the conduct in this case as "reprehensible". In that context, she arrived at a $90,000 per count fine and a total fine of $270,000.

The Justice of the Peace was not sentencing Matcor for the 2013 incident for something done or the injuries suffered in connection with the 2002 incident. She was not giving undue weight to a prior conviction. She was using it as one comparator to help her arrive at a fit sentence in the case at bar. This was quite appropriate in my view.

4. The Fourth Error Alleged: Imposition of A Sentence Outside The Applicable Range

It is Matcor's submission that Justice of the Peace imposed a sentence that was "well outside of the established range for the offences of which Matcor was convicted".

Matcor submits that this occurred because of the various errors it alleges the Justice of the Peace made. I have already outlined above why I disagree with Matcor's submission that the Justice of the Peace erred in principle in any respect.

Matcor submits that apart from the other errors it alleges, it was a freestanding error to impose the sentence imposed in this case because it fell outside the acceptable range.

The appellant Matcor placed before this court on appeal substantially the same cases it placed before the Justice of the Peace. I reviewed each of these cases provided to me by Matcor. In addition, subsequent to the hearing of the appeal, I provided further authorities to counsel for Matcor and the Crown and invited any comment that they may have. I will return to this point in a moment.

It appears to the court that every case placed before the court and relied upon by Matcor in support of its submission that the sentence in this case fell outside of the acceptable range were either guilty pleas or ex parte trials. All of these cases were appropriate for me to consider but they are not binding on me in that they are all decisions of Justices of the Peace or provincial court judges. While it is difficult to tell based only on the summaries of the cases, at least some of the guilty pleas were joint submissions (see R. v. Cosma Powerlasers Ltd. [2001] 54 W.C.B. 2d 277).

A small number of the cases put before me were ex parte trials which in my view are also worthy of consideration but are not the same as fully contested trial matters where sentences are imposed (see R. v. Peco Inc. May 4 2006, Justice of the Peace Napier).

As I say, the vast majority of cases placed before me were guilty pleas. A guilty plea is a significant sign of remorse and plays an important role in assisting a court to arrive at a fit sentence. Matcor was of course fully entitled to plead not guilty and put the Crown to the full proof of the case. It was fully entitled to have a five day trial and to raise the defence of due diligence in respect of each of the charges.

Having said that, when the five day trial was over, and Matcor was found guilty on all counts, it is not a particularly strong submission to point to guilty plea cases and submit that it ought to receive a fine within or less than the same range of those guilty plea cases. For example, Matcor points to the case of R. v. Servello Carpentry Ltd. [2010] O.J. 6264, a decision of a former member of this court, A.M. Hourigan J., sitting on an appeal from a Justice of the Peace's sentence in respect of a guilty plea before a Justice of the Peace. In that case the Justice of the Peace imposed a sentence of $15,000 in respect of a violation under the OHSA. The underlying facts of the case involved a failure by the employer to provide an adequate guardrail. The employee fell and was paralyzed from the waist down.

The yearly gross income of the employer was $400 to $700,000 in that case. I take that figure to be a top line revenue figure, not net profit. As a result, I view the company in that case as being on the smaller side.

Justice Hourigan concluded that the appropriate range of sentence for cases similar to the one before her was a $70-170,000 (see paragraphs 57 and 72). She did so based on the cases provided to her by counsel. I note that every case Justice Hourigan referred to in arriving at this proposition was a guilty plea as of course was the case before her.

The Crown submitted on appeal in this case that the $270,000 imposed by the Justice of the Peace was higher than any non-fatality case except for large mining company type offenders with significant prior records.

I located the following case summaries and provided them to both counsel subsequent to the hearing of the appeal:

i. R. v. Elan Corp Inc. (February 12th, 1992, Justice of the Peace Walker), in which four workers were injured, one seriously, when a hose supplying air was not maintained. A $400,000 fine was imposed by a Justice of the Peace after an ex parte trial;

ii. R. v. 698984 Ontario Ltd. (March 17, 1992), the court imposed a $300,000 fine where a worker had his leg crushed. There was an ex parte trial in that case.

iii. R. v. Great Lakes Power (September 11th, 2003 Humphrey J), on a guilty plea the court imposed a $250,000 fine for a large corporation where one worker was electrocuted and suffered burns to his body and the amputation of both legs and arm, shoulder, and a finger after a tree hit a power line. Matcor's counsel submits that this case also involved the dropping of charges against three directors; and

iv. R. v. Bombardier Inc. (April 9, 2003 Buterin Justice of the Peace). This case involved a $225,000 fine in total in respect of three charges. A forklift operator suffered severe bruising to his leg and had to drive himself to hospital. The supervisor was insensitive after the incident. It is not clear if this was a trial or a guilty plea.

I conclude from the above cases that there have been sentences in non-fatality cases that involve fines well in excess of the range referred to by Justice Hourigan in Servello. I recognize that the Elan case and the 698984 Ontario Ltd. case were ex parte trials and there are limitations on the persuasiveness of such awards. I acknowledge as well that the Bombardier and Great Lakes Power cases involve large corporations but note as well that these cases and many others are dated and there is an inflationary factor to be considered. A $250,000 fine in 2003, as in the Great Lakes case, would be more in today's environment.

Finally, in making the foregoing observations, I am not meaning to be critical of either counsel, both of whom were very helpful to me in their submissions before the court.

Matcor also referred to R. v. Cosma Powerlasers Ltd., [2001] 54 W.C.B. (2d) 277, where a worker was pinned by a robotic arm and later died. A $175,000 fine was imposed on a joint submission basis. Matcor also referred R. v. Home Depot (July 22, 2014) where a Justice of the Peace considered a case where a worker was paralyzed due to an occupational health and safety violation. A $90,000 fine was imposed on a guilty plea.

Let me state clearly that in my view, the case of R. v. Home Depot involved the imposition of an inappropriately low fine of only $90,000 in respect of an OHSA violation and I find it to be of no persuasive value. Similarly, the Powerlasers case involving an imposition of a $175,000 fine on a joint submission basis in respect of a fatality in the workplace relating to an occupational health and safety violation is far too low and is of no persuasive value.

Further, I consider that the $70,000 to $170,000 range referred to by Justice Hourigan in Servello is most certainly not the range of sentence to be imposed where an offender is found guilty of a serious occupational healthy and safety violation or violations after a contested trial and a catastrophic injury has been suffered by a worker due to an occupational health and safety violation.

The Servello case has some application in the guilty plea context. However, I note as well that Servello is now seven years old, so it is dated and the question of inflation must also be considered.

Having considered the case law, let me return to the central question on this branch of the appellant's submission and ask whether the sentence imposed in this case of $270,000, namely $90,000 per count, was outside the acceptable range?

In my view, it was not outside the acceptable range, taking into account all of the relevant considerations in this case. As is well known, based on the Cotton Felds case the court is to consider the size of the company involved, the scope of the economic activity, the extent of actual and potential harm to the public and the need for deterrence in respect of the enforcement of regulatory standards. In that context, I note the following:

Size and Economic Status of Matcor

1. Matcor appears to the court to be a substantial corporation. The Justice of the Peace had expressed a concern about a lack of financial information concerning Matcor before her. I agree with the Justice of the Peace that there is limited information before the court as to the financial and economic state of Matcor. We do know that it currently employs 770 employees in Ontario alone and that in 2004 it employed 400. We know nothing of its profitability. It is a private company and it was acknowledged by counsel for Matcor before me that Matcor was part of a larger group of companies about which we have no further information other than we know that Matcor is related to another company called Matsu.

Counsel for Matcor points out in its factum that the Justice of the Peace "did not ask Matcor" for further financial information. To be clear, in my view, it was up to the parties to decide what financial information to place before the court. In the case of a private company like Matcor it would be up to Matcor to place before the court whatever financial information it wished.

I note that the Crown in this case, before the Justice of the Peace on sentencing, expressed a concern about the lack of financial information about Matcor, in light of Matcor's attempt to suggest that Matcor should be distinguished from other cases involving large corporations.

Ultimately, the court must decide this case based on the evidence it has and that was the position that the Justice of the Peace was in. The Justice of the Peace who sentenced Matcor, and this court, had no submission before it, let alone any evidence, to the effect that the fine imposed in this case will pose an undue hardship on Matcor. It was open to Matcor to make that submission based on evidence uniquely within its knowledge and it has not done so. All we have is that Matcor employs 770 people currently in Ontario, up from 400 in 2004. I make the simple observation that Matcor is a substantial corporation within a broader group of companies and that it must be deterred by the sentence imposed in this case and others in our community must be similarly deterred.

Number of Counts and Maximum Penalties

2. There were three counts that Matcor was found guilty of. No party has said that any count should be stayed pursuant to Kienapple. There were three separate wrongs. The maximum fine in respect of each count was $500,000 meaning that the maximum fine here was theoretically and potentially $1.5 million.

Harm to the Victim

3. The harm to Mr. Valentini was devastating. His life is permanently altered by his inability to do what most of us take for granted – the ability to walk. It happened because of Matcor's carelessness. Matcor condoned a serious lack of compliance with health and safety rules and procedures. When you are operating a substantial facility like Matcor is and health and safety practices are not followed, the result is predictable and foreseeable. Injury will very likely result to the people working in this environment. I acknowledge that Matcor was not a company without safety standards. It had standards and it did not set out or intend to hurt anyone. Its management is no doubt saddened by what happened here of course but ultimately the management of the company had the ability and the responsibility to train workers and to enforce safety standards and it fell short in this case, including by having a "quick fix" approach to maintenance which significantly and materially undermined the culture of safety in Matcor's operations.

Prior Conviction

4. There was a prior conviction here in 2004. I agree with the original submission of Matcor's counsel before the Justice of the Peace. To quote Matcor's counsel again, "It is a factor of some significance but it is certainly not a fresh, recent conviction".

Conclusion

Considering the principles of sentencing, including the principles of proportionality and totality; the need to impose a sentence that is fit and which deters both the offender in this case and others who might offend in the future; the sentence imposed in this case of $90,000 per count for a total of $270,000 fell within the appropriate range of sentence. It was "peculiarly in the discretion of the trial judge – a discretion with which an appellate court should not lightly interfere" to repeat the quote from R. v. St. Lawrence, supra. In the circumstances, the appeal from sentence is dismissed.

Released: June 5, 2017

Monahan J.

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Anka Bijelic, certify that this document is a true and accurate transcript of the recording of R. v. Matcor Automotive Inc., in the Ontario Court of Justice, held at 7755 Hurontario Street, Brampton, taken from Recording(s) (3111_306_20170605_091437__30_MONAHAPA) which has been certified in Form 1.

(Date) Anka Bijelic