Ontario Court of Justice
In the Matter of an Appeal
Under sections 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Between:
ONTARIO MINISTRY OF LABOUR
Respondent and Cross-Appellant
— AND —
SAMUEL, SON & CO. LIMITED
Appellant and Cross-Respondent
Before: Justice Alan D. Cooper
Heard on: December 15, 2016 & April 27, 2017
Reasons for Judgment released on: September 8, 2017
Counsel:
- Line Y. Forestier for the Ontario Ministry of Labour
- Norman A. Keith for Samuel, Son & Co. Limited
On appeal from: The trial judgment of Justice of the Peace Denis Lee on December 17, 2013, and the sentence imposed on June 16, 2014.
Introduction
[1] Samuel, Son & Co. Limited [hereinafter referred to as Samuel] operates a steel processing plant at 1250 Appleby Line in Burlington. It purchased this operation in 2008 from a company called Namasco, which also processed steel. On August 27, 2010, a worker, Mario Simoes, was working on what is known as the 1430 slitter line, and a large steel coil fell on him and crushed him to death.
[2] The Ontario Ministry of Labour investigated and Samuel was charged with the following three charges:
Count 1: On or about the 27th day of August, 2010, failed as an employer, to ensure that the measures and procedures prescribed by section 45(b) of Ontario Regulation 851 R.R.O. 1990 as amended, were carried out in the workplace, contrary to section 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c.O1, as amended. Particulars: The defendant failed to ensure material, articles or things were transported, placed or stored so that the material, articles or things being processed on the "1430 slitting machine" would not tip, collapse or fall and could be removed or withdrawn without endangering the safety of any worker. A worker, Mario Simoes, was killed.
Count 2: On or about the 27th day of August, 2010, failed, as an employer, to provide information, instruction and supervision to a worker to protect the safety of the worker at a workplace, contrary to section 25(2)(a) of the Occupational Health and Safety Act, R.S.O. 1990, c.O1, as amended. Particulars: The defendant failed to provide information, instruction and supervision on how to safely position, move and disband coils being processed on a slitting machine.
Count 3: On or about the 27th day of August, 2010, failed as an employer, to take every precaution reasonable in the circumstances for the protection of a worker at a workplace, contrary to section 25(2)(h) of the Occupational Health and Safety Act, R.S.O. 1990, c.O1, as amended. Particulars: The defendant failed to take the reasonable precaution of establishing and maintaining a safe procedure for positioning, moving or disbanding steel coils on a slitting machine.
[3] A lengthy trial began on May 6, 2013. On December 17, 2013, the defendant was found not guilty on counts 1 and 3, but guilty on count 2. A fine of $160,000 was imposed on June 16, 2014.
[4] Samuel appeals the conviction and the fine, and the prosecution has cross-appealed against the acquittal on counts 1 and 3, and against the sentence imposed.
The Grounds of Appeal
[5] The essence of the defence appeal against conviction is that the trial judgment is deficient in its reasons, and did not clearly set out how the Crown had proven the actus reus of count 2 beyond a reasonable doubt, ignored clear evidence of due diligence in the proof of ample training of the deceased and other employees, and ignored and did not make reference to the evidence of the expert witness called by the defence. The appeal against sentence states that the penalty imposed was harsh and unreasonable.
[6] The Crown appeal also states that the judgment is deficient, that the acquittal on counts 1 and 3 was an error, and that the sentence imposed was too lenient.
Powers of the Appellate Court and the Standard of Review
Provincial Offences Act
[7] The Ontario Provincial Offences Act sets out the appellate jurisdiction of this court:
Orders on appeal against conviction, etc.
120 (1) On the hearing of an appeal against a conviction or against a finding as to the ability, because of mental disorder, to conduct a defence, the court by order,
(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.
(2) Where the court allows an appeal under clause (1)(a), it shall,
(a) where the appeal is from a conviction,
(i) direct a finding of acquittal to be entered, or
(ii) order a new trial; or
(b) where the appeal is from a finding as to the ability, because of mental disorder, to conduct a defence, order a new trial, subject to section 44.
(3) Where the court dismisses an appeal under clause (1)(b), it may substitute the decision that in its opinion should have been made and affirm the sentence passed by the trial court or impose a sentence that is warranted in law. R.S.O. 1990, c. P.33, s. 120.
Orders on appeal against acquittal
121 Where an appeal is from an acquittal, the court may by order,
(a) dismiss the appeal; or
(b) allow the appeal, set aside the finding and,
(i) order a new trial, or
(ii) enter a finding of guilt with respect to the offence of which, in its opinion, the person who has been accused of the offence should have been found guilty, and pass a sentence that is warranted in law. R.S.O. 1990, c. P.33, s. 121; 1993, c. 27, Sched.
Orders on appeal against sentence
122 (1) Where an appeal is taken against sentence, the court shall consider the fitness of the sentence appealed from and may, upon such evidence, if any, as it thinks fit to require or receive, by order,
(a) dismiss the appeal; or
(b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted,
and, in making any order under clause (b), the court may take into offence.
Variance of sentence
(2) A judgment of a court that varies a sentence has the same force and effect as if it were a sentence passed by the trial court. R.S.O. 1990, c. P.33, s. 122.
[8] The Crown factum further sets out the appellate jurisdiction of this court:
- In determining whether a verdict is unreasonable or unsupported by the evidence, an appeal court is not to set aside the conviction merely because it would have come to a different conclusion. An appeal court may not substitute its own view as to the propriety of a verdict unless it is unreasonable. A verdict is unreasonable only if the evidence is not reasonably capable of supporting the verdict.
R. v. Francois, [1994] 2 S.C.R. 827 at paras. 14, 26
- The standard of review on questions of law is correctness. The standard of review on findings of fact is palpable and overriding error. The role of this Honourable Court sitting on appeal is not to retry the case. If the trial justice made no legal errors and the findings can be supported on the evidence, the appellate court must show deference to the trial court's conclusions.
Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para 1, 8
R. v Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para 36
H.L. v. Canada (Attorney General), 2005 SCC 25, [2005]1 S.C.R. 401 at para 52
- It is well understood that "palpable and overriding error" is a narrowly defined scope of appellate review, which dictates that appellate courts must treat a trial judge's findings of fact with great deference. An "appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities." This restricted standard of review "dictates that a trial judge should not be found to have misapprehended or ignored the evidence, or come to the wrong conclusion merely because the appellate court diverges in the inferences it draws from the evidence and chooses to emphasize some portions of the evidence over others."
Housen v. Nikolaisen, supra, paras. 3, 56
Strict Liability
[9] The charges before the court are public welfare offence allegations, which fall in between mens rea offences and absolute liability offences. Once the prosecution proves the actus reus beyond a reasonable doubt, the onus shifts to the defendant to prove, on a balance of probabilities, that he took all reasonable care, or acted with due diligence, applying a reasonable man test. See R. v. City of Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.)
Analysis
[10] On the day that he met his death, Mario Simoes, who had just turned 41 years of age, had worked a full shift and was now voluntarily working a half shift of overtime. His particular job was, by collective agreement, a one person job. He was a unionized employee and paid by the hour.
[11] The accident occurred at approximately 4:30pm, and there were no eyewitnesses. After the accident, an employee saw that a large coil of steel had fallen on Mr. Simoes, and he was pinned underneath it. He died as a result.
[12] Mr. Simoes' job on the 1430 slitter line was to cut the bands on coils of steel and transfer the individual coils from his area, known as the staging area, onto a large steel cylinder called a mandrel, which would stabilize the coil so that it could be cut or slit into narrower widths in the slitting area. Samuel processed coils which were 5 feet in diameter and ranged from 12 inches in width to 72 inches. The 5 coils the deceased was working on were 12 inches wide and were to be cut into smaller widths. This was a custom order for a particular customer, Northfield Metals. Each coil weighed 10,500 pounds. The coils were individually bound with steel strapping, and all 5 coils were also held together by similar metal strapping.
[13] Earlier in the day, crane operator Criot Durastani had securely placed the 5 coils onto the trough and coil car [buggy] of the staging area where Mr. Simoes worked. The presiding Justice of the Peace accepted his testimony as accurate and credible, although he did not refer to him by name in his judgment. This was the basis for the finding of not guilty on count 1 in the information.
[14] The trough is a large rectangular area onto which the coils were placed. On each side of the trough are slanted, rubberized cradle sleeves or pads, which secure the coils in the trough. At the bottom of the trough is a coil car, which is also called a buggy. It has coils or rollers on it. The coil car can move up or down, or backward and forward, and the rollers can be rotated. When a crane operator transfers the coils onto the trough, the coil car must be at the bottom of the trough, and the cradle sleeves are to be put tight against the coils. The coils must be completely on the coil car rollers and no part of them is to overhang.
[15] After the crane operator transfers the coils, the slitter operator can manipulate the coil car and cradle sleeve movement from a nearby control box. This is necessary to allow the coils to be centred onto the mandrel, and to facilitate their transfer to the cutting area.
[16] Once the coils are stably secured in the trough, the steel bands holding all 5 coils together can be cut, as can the steel bands around each individual coil. The defence expert witness, forensic engineer James Wilkinson, testified that if the coil car is at the bottom of the trough, and the cradle sleeves are against the coils, and the load is resting entirely on the coil car rollers, the steel straps could be cut and the coils would remain on the coil car and not tip over.
[17] For reasons unknown, Mr. Simoes elevated the coil car with the coils on it, so that they were no longer stabilized in the trough. He also moved the coil closest to the mandrel so that 11¾ inches of its 12 inch width was hanging off the end of the coil car rollers. It was then that he cut the bands holding all 5 coils together. The result was predictable.
Mario Simoes Background and Training
[18] Mr. Simoes had worked for Namasco since 1992, but only became a slitter operator after Samuel took over in 2008. By the time he met his death on August 27, 2010, he had received 80 hours of hand-on training from fellow employee and slitter machine operator Robert Rosato, and received other extensive safety training from the company. Before the accident he had processed 225 of the same twelve inch coils for Northfield Metals without incident. His training records were introduced into evidence. The company had safety documents called Safe Operating Procedures, but not all safety procedures were reduced to writing, and this was not required by law. It is my view that the company safety program for its employees was very thorough, continuous, and up to date.
The Hands-On Trainer of Mr. Simoes, Robert Rosato
[19] The Crown has submitted that the written safety procedures never specified how the bands were to be cut. Some employees would rotate the coils to move the bands into a position where they could be cut, whereas other employees such as Mr. Rosato would cut the bands from the side of the trough without having rotated the coils. However, Mr. Rosato and other Samuel witnesses were adamant that they would never cut the bands in the face of the coil as Mr. Simoes had done. Management may have preferred that the coils be rotated before the bands could be cut, but there was no apparent danger in not rotating them, and by simply reaching in and cutting them from either side of the trough with long shears.
Guarding
[20] Prior to the accident, the Ministry of Labour and the company's Joint Health and Safety Committee had never directed that the area in front of the coil to be protected by a physical guarding device. Nor was this required by law.
The Toxicology Report
[21] The defence made reference to a post mortem report and to a toxicology report which indicated that Mr. Simoes was found to have in his system traces of a prescribed medication. It was submitted that this may have affected him at the time of the accident. Neither report was put into evidence by the Crown or the defence, and no toxicological or pharmacological expert was called by either side. The only reference to these reports is found in the defence cross-examination of the Ministry of Labour investigator, Erica Arseaneault. The defence quoted the Crown toxicologist as having written that the medication "may cause drowsiness. Traces of the drug, however, are unlikely to have caused significant impairment and therefore not considered to have contributed to this man's death."
[22] In my view, there was no need for the investigator to follow up on this, nor was there any need for the trial Justice to deal with it in his judgment.
The Actus Reus and Employee Negligence
[23] The Crown contends that worker conduct, even negligence, should not be considered when deciding if the prosecution has proven the actus reus beyond a reasonable doubt. In workplace accident cases the actus reus would be a wrongful act caused by an employer failing to provide a safe place of work. The Crown relies on Ontario (Ministry of Labour) v. Hershey Canada Inc., 2006 ONCJ 420, [2006] O.J. No. 4474, a decision of my brother Justice March, sitting on appeal. March J. said the following:
17 The position of the Ministry of Labour is that employee misconduct forms no part of the actus reus. It is their position that they need only show that the employee cleaned the machine when it was not stopped and that is sufficient to establish the actus reus.
18 As to the issue of employee misconduct, on the facts before me, it is my opinion that employee misconduct does not go to the issue of actus reus. In coming to this decision, I am guided by the comment of Mr. Justice Laskin in Ontario (Ministry of Labour) v. Dofasco Inc. [2005] O.J. No. 3852 (Ont. C.A.) at paragraph eight:
- As the MOL points out, workplace safety regulations are not designed just for the prudent worker. They are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless.
19 It is my opinion that the issue of employee misconduct goes to the issue of due diligence as opposed to the actus reus of the offence.
[24] The Dofasco decision cited was an endorsement of Laskin J.A. The Hershey case was never appealed by the company.
[25] Ontario (Ministry of Labour) v. Dofasco Inc., [2005] O.J. No. 3852 (C.A.), which Justice March had relied on, was a case in which Laskin J.A. granted the Ministry of Labour leave to appeal an acquittal by a Justice of the Peace, which had been upheld on an appeal before a judge of the Ontario Court of Justice. The Court of Appeal heard the actual appeal one year after March J.'s decision in Hershey, and the judgment was reported at 2007 ONCA 769, [2007] O.J. No. 4339 (C.A.). The acquittal was set aside and a conviction entered. Leave to appeal to the Supreme Court was refused: see [2008] S.C.C.A. No. 24.
[26] The facts were that Dofasco operated a cold-rolling steel mill, and an employee had suffered a serious hand injury. The injured employee and a co-worker had not followed a specific company procedure, but the court found that the company should have placed a physical guard at the pinchpoint in question before the accident. Not to have done so was a clear breach of the Occupational Health and Safety Act regulations. I quote from the judgment:
(iv) The deliberate conduct of the worker in not following company procedures
21 Dofasco's third argument is that an employer cannot be held liable under s. 25 of the Regulation where an employee is injured as the result of his and a co-worker's deliberate conduct in failing to follow company procedures and protocols. Dofasco emphasizes the statement by the injured worker to his co-worker to the effect that "to hell with it lets do it the way we used to" to place the blame for the accident squarely on the shoulders of the injured worker, Mr. McCormick. The Justice of the Peace adopted this view. We cannot accede to this position. It is contrary to the scheme of the OHSA and the Regulations. In our view, it is also at odds with the relevant jurisprudence and common sense.
22 On a plain reading of the Regulation, employee misconduct does not go to the actus reus of the offence. Rather, at least in relation to employees carrying out their work, an employer is strictly liable if it fails to comply with its obligations and there is no suggestion that employee misconduct constitutes any form of defence.
23 Further, Collins J. had this to say about the purpose of the OHSA in R. v. Spanway Buildings Limited, April 3, 1986, unreported, at p. 4 (Ont. Prov. Ct. (Crim. Div.)):
... one of the purposes of the act is to protect workers in this very hazardous industry from their own negligence. No one in any occupation can work 100 percent of the time without occasional carelessness. However, the potential for serious consequences of momentary negligence is much greater in the construction industry than in almost any other.
This admonition is particularly apposite in the context of the steel industry.
24 Moreover, as was noted by Laskin J.A. in his decision granting leave to appeal in this case, "... workplace safety regulations are not designed just for the prudent worker. They are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless". In our view, this principle also extends to deliberate acts of employees while performing their work.
25 In our opinion, Dofasco's argument ignores common sense. Employees do not deliberately injure themselves. The requirement for guarding of machinery is to protect employees in the workplace from injuries due to both inadvertent and advertent acts. This is the reason for the requirement for physical guards. Employees encounter all variations of workplace hazards. Some are inadvertent - for example, employees may slip, misjudge distances, lose their balance, their timing or dexterity may be off, lose concentration or simply be careless. Physical guards or their equivalent are obviously required to prevent against injury in these situations.
26 Physical guards or the equivalent are also required to prevent injury from advertent acts by employees exposing themselves to risk of injury. In this regard there seems to be some confusion as to what meaning ought to be attributed to deliberate acts. This does not mean an act by an employee to intentionally injure oneself. That stretches credulity. It does mean, however, that on occasion an employee may make a conscious decision to disobey an instruction or work practice in order to get his or her work done. Indeed, that is what occurred in the present instance. The statement by Mr. McCormick makes this clear.
27 But the workers here did not disobey the work instruction to spite or injure the employer. They did so because the work practice specified did not readily accomplish its task with certain light gauges of steel stock such as they were processing on the day in question. The use of the push bar or hand grippers, which were specified, did not work properly on the light steel being processed through the rolling mill on this occasion. The employees could have pulled the roll of steel off of the mill. That was the specified procedure but it would have meant delays and curtailed production. Instead they chose to use a procedure they had used on a different machine, thereby exposing Mr. McCormick to the risk of injury on this machine. The injury he suffered was as a result of his deliberate act, but it was an act done in furtherance of productivity in the work undertaken for the employer and not for any other reason. To suggest that the responsibility for the injury, pain and suffering rests squarely on his shoulders would be unfair because defects in the process for performing the work in question and the absence of a physical guard contributed significantly to the accident. For all of the foregoing reasons, we do not give effect to this submission.
[27] It is obvious that the facts are different than in the case at bar. In Samuel there was no legal requirement, or directive from the Ministry of Labour, that a physical guard was to be installed in the location where the coil fell onto Mr. Simoes. As well, there was nothing to suggest that he was taking a shortcut in order to improve processing speed and efficiency, as was the case in the Dofasco.
[28] With the utmost deference to our Court of Appeal, my interpretation of its decision in Dofasco is that worker mistakes, carelessness, recklessness, and deliberate acts are not to be taken into consideration in assessing whether the prosecution has established the actus reus of the offence, when the employer has breached a specific safety obligation mandated by the Occupational Health and Safety Act. I have paid particular attention to paragraphs 22 and 25 of the Dofasco decision, which are set out above.
[29] In Ontario (Ministry of Labour) v. BFI Canada Inc., [2013] O.J. No. 6424, Paciocco J., then sitting in the Ontario Court of Justice, was dealing with a workplace accident in which a temporary worker stepped out of a moving vehicle and his foot was crushed under the wheel. He had been specifically directed beforehand not to do this by 2 drivers and a supervisor. I quote from this decision:
5 Based on the arguments before me and an analysis of the Reasons for Judgment I find that the Learned Trial Justice did err in finding that the Crown had met its burden of proof. I am satisfied that she misapplied the legal test, failing to conduct a discrete and proper evaluation of whether the Crown had proved beyond a reasonable doubt that BFI had failed to "inform, instruct and supervise." Mr. Crocker suggested in his argument that this error occurred because the learned Trial Justice may have reasoned that since the accident happened, it follows that there must not have been adequate information, instruction and supervision provided. I find no support for this theory. What does find support, however, is that the Learned Trial Justice erroneously melded the actus reus and due diligence analysis. I am persuaded that she effectively concluded that the Crown had met its burden because the accused had not proved due diligence. This error makes her finding that the prosecution had met its burden wrong in law.
[30] Although Paciocco J. made no reference to Hershey, he did take worker negligence into consideration in deciding whether the Crown had established the actus reus beyond a reasonable doubt. I prefer the reasoning in BFI Canada Inc., to that in Hershey, with the greatest of respect to March J.
[31] In our case, the trial Justice ought to have taken the negligence of Mr. Simoes into consideration on this issue, and he did not. This constitutes a palpable and overriding error.
[32] When he wrote that "it is sheer speculation what took place that day," it is my view that he was not referring to the cause of the accident, as the defence has argued, but rather to the state of mind of Mr. Simoes at the time of the accident. Despite his extensive safety training and experience, he cut the bands holding the coils together when the better part of the coil closest to him was not resting on the coil car rollers, and when the coil car was raised up from the trough, so that the coil was not stabilized. This was extreme negligence on his part.
The Evidence of Defence Expert James Wilkinson
[33] The trial Justice was initially reluctant to qualify Mr. Wilkinson as an expert forensic engineer in the investigation of workplace accidents. However, after a recess, he reversed his ruling and heard the expert's evidence. However, he made no reference to it in his judgment and does not seem to have considered it. This was important evidence because Mr. Wilkinson testified that in his opinion "the design and layout of the staging area and the established work procedures for preparing the coils for the slitter were both adequate and sufficient to ensure the stability of the coils and prevent the coils from tipping."
[34] Mr. Wilkinson also said in his evidence that had the coil been fully placed on the rollers of the coil car, and the coil car lowered below the trough, the bands could have been cut and the coil still would not have fallen. He also said that he was impressed with the 80 hours of hands-on training Mr. Simoes had received.
[35] As a result, the failure of the trial Justice to consider his evidence is also a palpable and overriding error.
Conclusion
[36] It is my opinion that the Crown has not established the actus reus of count 2, so that the conviction cannot stand. If I am in error, it is my finding that the defendant has established due diligence on a balance of probabilities. There was ample evidence of thorough and extensive employee safety training, and the accident was not due to a lack of it. It was the negligence of Mr. Simoes which caused it, something the company could not have foreseen. It is a tragedy because Mario Simoes was a husband and father and a long time, valued employee.
[37] I am also of the view that the finding of not guilty on count 1 was properly decided, given the acceptance by the trial Justice of the evidence of the crane operator. The acquittal on count 3 will remain, although the Justice of the Peace ought to have acceded to the Crown's request to stay this charge after he found that it was in substance the same as count 2.
[38] Since there are no credibility issues in this matter, there is no need for a new trial, or to consider the appeal against sentence.
Released: September 8, 2017
Signed: "Justice Alan D. Cooper"