Court File and Parties

Ontario Court of Justice

Date: 2017-10-20

Court File No.: 13-1885

Between:

Her Majesty the Queen Appellant/Respondent to the Cross-Appeal

— And —

614128 Ontario Ltd. O/A Trisan Construction Respondent/Appellant by Cross Appeal

Before: Justice C.M. Harpur

Heard on: September 1, 2017

Reasons for Judgment released on: October 20, 2017

Counsel:

• David McCaskill, for the Crown
• Norman Keith, for 614128 Ontario Ltd.

On appeal from: The directed verdict and judgment of Justice of the Peace G. Solursh dated, respectively, June 2, 2015 and March 22, 2016 acquitting the Respondent/Appellant by Cross-Appeal.

HARPUR J.:

A. Introduction

[1] Her Majesty the Queen in Right of Ontario (Ministry of Labour) ("Ontario") appeals the acquittals of 614128 Ontario Ltd. O/A Trisan Construction ("Trisan") on charges laid against Trisan under the Occupational Health and Safety Act, R.S.O. 1990, c.O.1 ("OHSA").

[2] On September 10, 2012 Trisan employee Kenneth Campbell was killed when a dump truck reversed into him as he stood on his bulldozer in Trisan's construction materials yard near Schomberg, Ontario.

[3] The accident was investigated by Ontario which then laid four charges under the OHSA relating to the alleged breaches by Trisan of its duty to provide a signaller for drivers using the yard in certain circumstances and to ensure that the signaller observed certain prescribed standards.

[4] Specifically, Trisan was charged under s. 25(1)(c) OHSA which places an obligation on an employer to ensure that the measures and procedures set out in Regulation 213/91 (the "Regulation") are carried out. Ontario charged Trisan with breaches of four such measures and procedures in connection with the death of Mr. Campbell. They are set out in the italicized sections s. 104 and s. 106 of the Regulation, which provide as follows:

Section 104 – Reverse Operation of Vehicles and Equipment

104. (1) Every project shall be planned and organized so that vehicles, machines and equipment are not operated in reverse or are operated in reverse as little as possible. O. Reg. 145/00, s. 27.

(2) Vehicles, machines and equipment at a project shall not be operated in reverse unless there is no practical alternative to doing so. O. Reg. 145/00, s. 27.

(3) Operators of vehicles, machines and equipment shall be assisted by signallers if either of the following applies:

1. The operator's view of the intended path of travel is obstructed.
2. A person could be endangered by the vehicle, machine or equipment or by its load. O. Reg. 145/00, s. 27.

(4) Subsection (3) also applies to shovels, backhoes and similar excavating machines and to cranes and similar hoisting devices. O. Reg. 145/00, s. 27.

(5) The operator and the signaller shall,

(a) jointly establish the procedures by which the signaller assists the operator; and

(b) follow those procedures. O. Reg. 145/00, s. 27.

(6) If subsection (3) applies to the project and it is not possible to carry out the project without some operation of vehicles and equipment in reverse, signs shall be posted at the project in conspicuous places warning workers of the danger.

Section 106 – Signaller Requirements

106. (1) A signaller shall be a competent worker and shall not perform other work while acting as a signaller.

(1.1) The signaller shall wear a garment that covers at least his or her upper body and has the following features:

1. The garment shall be fluorescent blaze or international orange in colour.
2. On the front and the back, there shall be two yellow stripes that are 5 centimetres wide. The yellow area shall total at least 500 square centimetres on the front and at least 570 square centimetres on the back.
3. On the front, the stripes shall be arranged vertically and centred and shall be approximately 225 millimetres apart, measured from the centre of each stripe. On the back, they shall be arranged in a diagonal "X" pattern.
4. The stripes shall be retro-reflective and fluorescent. O. Reg. 145/00, s. 28.

(1.2) If the garment is a vest, it shall have adjustable fit. O. Reg. 145/00, s. 28.

(1.3) A nylon vest to which this section applies shall also have a side and front tear-away feature. O. Reg. 145/00, s. 28; O. Reg. 345/15, s. 16.

(1.4) In addition, a signaller who may be endangered during night-time hours shall wear retro-reflective silver stripes encircling each arm and leg, or equivalent side visibility-enhancing stripes with a minimum area of 50 square centimetres per side. O. Reg. 145/00, s. 28.

(1.5) The employer shall,

(a) ensure that the signaller has received adequate oral training in his or her duties and has received adequate oral and written instructions in a language that he or she understands; and

(b) keep the written instructions at the project.

(2) A signaller,

(a) shall be clear of the intended path of travel of the vehicle, machine or equipment, crane or similar hoisting device, shovel, backhoe or similar excavating machine or its load;

(b) shall be in full view of the operator of the vehicle, machine or equipment, crane or similar hoisting device, shovel, backhoe or similar excavating machine;

(c) shall have a clear view of the intended path of travel of the vehicle, machine or equipment, crane or similar hoisting device, shovel, backhoe or similar excavating machine or its load; and

(d) shall watch the part of the vehicle, machine or equipment or crane or similar hoisting device, shovel, backhoe or similar excavating machine or its load whose path of travel the operator cannot see. O. Reg. 213/91, s. 106(2).

(3) The signaller shall communicate with the operator by means of a telecommunication system or, where visual signals are clearly visible to the operator, by means of prearranged visual signals. O. Reg. 213/91, s. 106(3).

[5] Trisan's trial on these charges commenced on October 6, 2014. The Crown completed its case on March 24, 2015 following four days of evidence. Trisan then brought a motion for a directed verdict of acquittal in respect of all counts. The basis of the motion was that the charges had been improperly laid under the Regulation, which applies to "construction projects", as opposed to having been brought under Ontario Regulation 851/90 which applies to "industrial establishments".

[6] On June 2, 2015 the trial court directed a verdict of acquittal in respect of one count and dismissed Trisan's motion with respect to the other three. The acquittal was ordered on the basis that Ontario had not proven that the driver of the reversing dump truck was an employee of Trisan. Counsel are agreed on this appeal that an employer/employee relationship was not an essential element of the charge, that no such argument had been made by Trisan on the motion and that this aspect of the trial decision is in error. Ontario's position is that the acquittal should be overturned on a proper consideration of the merits. Trisan's position is that the acquittal is appropriate, although on the basis of the "wrong regulation" argument and not for the trial court's reasons.

[7] Following a further day of defence evidence on July 20, 2015, the trial court dismissed the remaining charges against Trisan in a judgment reserved until March 22, 2016.

[8] Ontario has appealed the four acquittals. Trisan has cross-appealed, submitting that, while the trial court reached the proper result, it did so for the wrong reasons in respect of the directed verdict of acquittal and for incomplete reasons in respect of the dismissal of the other three charges. Trisan has also brought a motion to this court to stay all of the charges on the basis of a violation of Trisan's constitutional right to be tried within a reasonable time.

B. The Issues

[9] The issues raised by the appeal, cross-appeal and motion are the following:

(i) does the Ontario Court of Justice, sitting on appeal from a judgment of charges laid under the Provincial Offences Act, R.S.O. 1990 c.P.33, as amended ("POA") have jurisdiction to entertain a motion to stay under Charter s. 11(b) and, if so, should this court exercise its jurisdiction in this case?

(ii) does the Ontario Court of Justice, sitting in this capacity, have jurisdiction to entertain an appeal brought by the successful defendant of reasons for decision of the trial court and, if so, should this court exercise its jurisdiction in this case?

(iii) did the trial court err in finding that Ontario had failed to prove that Trisan did not comply with s. 104(3) of the Regulation by Trisan's (i) not ensuring that Mr. Campbell was a competent worker and was not performing other work while acting as a signaller (s. 106(1)); (ii) not ensuring that Mr. Campbell was clear of the intended path of travel of the reversing dump truck (s. 106(2)(a)); or (iii) not ensuring that Mr. Campbell was in full view of the operator of the reversing dump truck (s. 106(2)(b)); and

(iv) did the trial court err in finding that Trisan had proven due diligence?

[10] I pause here to note that I have described the third issue in this manner in reliance on R. v. Hamilton (City), [2002] O.J. No. 283 (O.C.A.), referred to in Ontario's casebook on this appeal. In Hamilton, a unanimous Court of Appeal held that s. 104 and s. 106 of the Regulation are to read together, that s. 106 describes the duties of the signaller referred to in s. 104. The court held that both sections 104 and 106 "reflect the Legislature's intention to deal with precisely the same occupational risk of harm". I would characterize that risk as the risk to persons present in a workplace who are proximate to a vehicle, machine or piece of equipment which presents a danger either per se or because its operator's view of his or her intended path of travel is obstructed.

[11] Hamilton established that, where a signaller is required pursuant to s. 104 of the Regulation, that signaller must meet the requirements set out in s. 106. Where the signaller does not meet those requirements, he or she is not the signaller called for by s. 104(3). Accordingly, if any one of the signaller duties set out in s. 106 is alleged and proven not to have been observed, then the signaller required pursuant to s. 104 has simultaneously been proven not to have been present. The essential offence, however, is described in s. 104(3). Hence my description of the issue.

C. Analysis

1. Trisan's s. 11(b) Motion

[12] I have not considered Trisan's motion on its merits. I regard as compelling Ontario's submissions that either I cannot regard Trisan as an appropriate moving party for Charter delay relief, pursuant to R. v. Potvin, [1993] S.C.R. 880, or that I should not do so, on the authority of R. v. L.G. (2007), 2007 ONCA 654, 228 CCC (3d) 194 (O.C.A.), and the additional caselaw referred to at para. 16 of Ontario's Reply Submissions on this appeal. The motion was not brought at trial. The delay ground relied upon concerns alleged unreasonable delay until the end of trial; the interval between the trial and this appeal are not the subject of any complaint. The factors referred to in Ontario's authorities on the point apply to this motion, including the importance of the finality of litigation and the need for a sufficient record. These factors militate strongly against the remedy sought, even if it could be seen to fall within my jurisdiction. The motion is dismissed.

2. Trisan's Cross-Appeal

[13] I also agree with Ontario's position that s. 121 of the POA does not empower this court, sitting in appeal, to review the reasons on which a defendant has succeeded at trial. Trisan's cross-appeal must be dismissed on the basis of lack of jurisdiction. I do not, however, regard the dismissal as extinguishing Trisan's entitlement to have its "wrong regulation" defence considered. Given the parties' agreement that the trial court erred in its consideration of Ontario's essential averment that Trisan failed to supply the required signaller on the date of Mr. Campbell's death, and that a re-consideration is necessary, that re-consideration ought not to exclude whatever defences Trisan put before the trial court.

[14] In the event, however, I regard as correct what seems to be the trial court's finding that the Regulation did apply to the Trisan materials yard. At the directed verdict stage, the trial court said the following:

Mr. Keith's position is that the dirt came from a construction project and was dumped at the Trisan yard for storage purposes, but that does not make the yard a construction project as storage is not a construction project.

He argues the Trisan yard is not a construction project but is an industrial establishment and suggests that the charges should have been laid under the Industrial Establishment Regulations.

Understandably, Mr. McCaskill, the Crown, takes a contrary position and cites The Ministry of Labour v. Hamilton City wherein it is stated that the O.H.S.A. is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers.

When interpreting legislation of this kind it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes or objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided…

…With respect to the argument that the charges ought to have been laid under the Industrial Establishment Regulations I make the following comments. The charges were laid under s. 25.1(c) of the Occupational Health and Safety Act. The elements of the offences relate to those charges.

The definition of "workplace" should be broadly viewed and the Trisan yard can be viewed both as a workplace and as an industrial establishment.

The definition of "workplace" should be dealt with in the trial. It is not an element of the offence.

If the Trisan yard was not a workplace then the Ontario Health & Safety inspectors should not have been involved.

[15] In the reasons for decision in respect of the dismissal of Counts 2, 3 and 4 in the Information, the trial court said the following at page 11:

The court finds that the Crown has failed to make findings on the essential elements of the offences, that the due diligence argument made by Trisan has met the second branch of the due diligence defence based on the balance of probabilities, that being that reasonable precautions had been taken by Trisan, and as a result the court finds it unnecessary to make any additional findings which were already made in a previous decision on the submissions from defence counsel regarding the arguments as to the charges being laid under the wrong regulation.

[16] If these reasons ultimately express the view of the trial court that the definition of "construction projects" in the Regulation is sufficiently broad to encompass the nature of the work being performed at Trisan's yard, I agree. Section 1(1) OHSA defines "industrial establishment" and "construction project" in the following way:

"industrial establishment" means an office building, factory, arena, shop or office, and any land, buildings and structures appertaining thereto; ("établissement industriel")

"project" means a construction project, whether public or private, including,

(a) the construction of a building, bridge, structure, industrial establishment, mining plant, shaft, tunnel, caisson, trench, excavation, highway, railway, street, runway, parking lot, cofferdam, conduit, sewer, watermain, service connection, telegraph, telephone or electrical cable, pipe line, duct or well, or any combination thereof,

(b) the moving of a building or structure, and

(c) any work or undertaking, or any lands or appurtenances used in connection with construction; ("chantier")

"construction" includes erection, alteration, repair, dismantling, demolition, structural maintenance, painting, land clearing, earth moving, grading, excavating, trenching, digging, boring, drilling, blasting, or concreting, the installation of any machinery or plant, and any work or undertaking in connection with a project but does not include any work or undertaking underground in a mine; ("construction")

[17] The work being performed in Trisan's yard on September 10, 2012 was the transfer to and from the yard of earth excavated in the course of sewer pipe installations in the City of Toronto. Whether one regards the work in Trisan's yard or the sewer installation as the "project", the work in the yard falls within the definition. The possible application as well of Ontario Regulation 851/90 pertaining to "industrial establishments" does not preclude the application of the Regulation. As the trial court concluded, a workplace can be both a construction project and an industrial establishment. I see no legal or common-sense reason why the two Regulations cannot overlap in their application to a given workplace.

[18] Thus, I would not give effect to this potential defence in a re-consideration of the trial court's dismissal of Count 1.

3. The Requirement of Ensuring that the Operator of the Dump Truck Was Assisted by a Signaller (Count 1)

[19] It is common ground between the parties that, if Trisan's yard were a construction project, a pre-condition to the need for a signaller was met: "the operator's intended view of the intended path of travel was obstructed". The argument at trial and on appeal, apart from the applicability of the Regulation, has centered on whether the Crown has proven beyond reasonable doubt that the required signaller was not present. The trial court found that Ontario had not discharged this onus.

[20] I respectfully disagree. Applying the reasoning in Hamilton, it was only necessary for the Crown to prove the non-observance of any one of the duties set out in the subsections of s. 106 of the Regulation particularized in the Information – that is, of Mr. Campbell being a competent worker and not performing any other work, of Mr. Campbell being clear of the intended path of travel of the reversing dump truck or of Mr. Campbell being in full view of the operator of the reversing dump truck – in order to have proven the absence of the required signaller under s. 104.

[21] I see no error in the trial court's conclusion concerning Ontario's failure to prove that Mr. Campbell was not clear of the intended path of travel of the reversing dump truck (Count 3). It was open to the trial court to interpret the phrase "the intended path of travel" in the Regulation as meaning the route the driver of the reversing dump truck ought to have taken, as opposed to the route he took, and it is not disputed that Mr. Campbell was clear of that path.

[22] However, I regard the record as establishing conclusively the absence of both of the other two hallmarks of the required signaller alleged by Ontario. The trial court found that "there was no evidence that [Mr. Campbell] was performing any other duties while acting as a signaller", the requirement of s. 106(1). In fact, the undisputed evidence was to the contrary. Mr. Campbell was the sole yard signaller on September 10, 2012. He was also operating a bulldozer in the yard that day. A dump truck driven by Wahhab Tariq arrived at the yard with a load to drop. Mr. Campbell waved to Mr. Tariq to signal him to reverse his dump truck to the pile of earth in the yard where Mr. Campbell's bulldozer was then located. He then proceeded to drive his bulldozer to a position away from the pile and in a direct line behind the dump truck. The dump truck backed into Mr. Campbell's bulldozer rather than making the turn necessary to reach the pile of earth. There is no evidence that Mr. Campbell gave any further signal to Mr. Tariq or that he was in a location from which he could do so. Nevertheless, the trial court found that these circumstances did not preclude the prospect of Mr. Campbell having acted solely as a signaller at the material time. The reasoning of the trial court was the following:

The legislation does not compel each and every commercial establishment to have a dedicated signaller throughout the day. The reality in small and medium sized enterprises, people multitask and often perform several roles while employed. At the time that Mr. Campbell stepped into the role as a signaller, he then temporarily ceased his role as a bulldozer operator and as such was performing only one task at that time.

[23] This conclusion was contrary to the holding of the Ontario Court of Justice in R. v. Briscoe, [1993] O.J. No. 2265 (O.C.J.). In Briscoe, Merredew, J. found that the dedicated signaller described in s. 106(1) of the Regulation was not a person who could switch back and forth between the role of signaller and any other role.

[24] The OHSA and its regulations have been enacted in the pursuit of public safety in workplaces. The provisions require a broad and purposeful interpretation. Even if the trial court was correct, contrary to Briscoe, in its finding that the dedicated signaller called for in the Regulation need not be one dedicated "for the day" or for the entirety of his or her shift, in my view the legislation must be seen as requiring a worker's devotion to signaling duties in such a manner as to exclude participation in, or distraction by, any other duties so long as the signaling is required.

[25] The circumstantial evidence here is that Mr. Campbell stood on one of the tracks of his bulldozer as Mr. Tariq reversed his dump truck. Mr. Campbell's fellow employee, bulldozer operator Alessandro Milani, gave evidence about the proper procedure for a signaller at the Trisan yard. He said the signaller was to go to the left side of a reversing truck, so that he or she could easily be seen in the mirrors, and to guide the truck from that position. There was no evidence before the trial court that Mr. Campbell took such steps in dealing with Mr. Tariq's truck or that he engaged in any other form of signaling, following his initial wave, as Mr. Tariq reversed his truck toward Mr. Campbell's bulldozer. The appropriate conclusion from the evidence may well be that Mr. Campbell had not relinquished his role as bulldozer operator at the point where Mr. Tariq was reversing the dump truck toward him. In any event, it prevents one from regarding Mr. Campbell as exclusively acting as signaller for Mr. Tariq at that time. The need for him to have done so is tragically clear.

[26] As to the trial court's finding that Mr. Campbell was "in full view" of Mr. Tariq under s. 106(2)(b) of the Regulation, again I regard the evidence as entirely to the contrary. It was open to the trial court to interpret the phrase "in full view" to mean "fully capable of being seen", as opposed to actually being seen. However, Mr. Tariq testified that he did not see Mr. Campbell as he reversed. While Mr. Tariq was found by the trial court to be a problematic witness in several respects, there was no basis for the trial court to find that Mr. Tariq was lying in this regard. To have found otherwise would be to conclude that Mr. Tariq intentionally struck Mr. Campbell with the truck that he was operating, a circumstance which neither party proposed. Trisan's evidence in this regard came from its witness Judy Frauts, a Ministry of Labour ergonomist. That evidence went no higher than to indicate that a portion of the bulldozer on the track of which Mr. Campbell was standing when struck by the reversing dump truck should have been visible to Mr. Tariq had he made proper use of the truck's side mirrors. As Ontario has submitted on this appeal, this is not the same thing as evidence that Mr. Campbell was fully capable of being seen by Mr. Tariq. There was no such evidence in the record.

[27] Thus, I find that the trial court erred in concluding that Ontario had not met its onus of proof with respect to Trisan's failure to observe the essential duty to provide the required signaller. Section 106(1) and s. 106(2)(b), and thus s. 104(3) of the Regulation, were not complied with.

4. Due Diligence

[28] My conclusion about Ontario's proof of the actus reus does not, of course, determine the question of Trisan's guilt. The offence is one of strict liability and it was and is open to Trisan to attempt to prove due diligence on a balance of probabilities in the matter of provision of the required signaller at the material time. This issue was the subject of a considerable body of evidence at trial and a significant aspect of counsels' submissions there. The trial court concluded that due diligence was established. Its reasons were these:

Melissa McCasey's evidence and testimony regarding employee training, weekly tool box safety talks and annual spring orientations, in conjunction with Joint Health and Safety Committee meetings on a regular basis is strong enough evidence to satisfy the court with respect to compliance with safety training that is required by the Occupational Health and Safety Act.…

…With respect to the essential elements of the offences, it is clear that Wahhab Tariq was not an employee of Trisan; that although Ken Campbell was an employee of Trisan that the training programs in place were adequate and sufficient to meet the standard set out in the Occupational Health and Safety Act.

[29] I agree with Ontario that these reasons do not meet the test for sufficiency set out in R. v. Sheppard, 2002 SCC 26, [2002] 1 SCR 869. Certainly they do not provide me with an understanding of the evidence and argument considered by the trial court in reaching its decision. In my view the issue must be re-considered.

D. Conclusion

[30] The trial court erred in its conclusion that Ontario had failed to prove beyond a reasonable doubt the actus reus of breaches by Trisan of its obligations under s. 106(1) and s. 106(2)(b), and thus under s. 104(3), of the Regulation. To succeed on this appeal, Ontario must further establish that, had the trial court's errors not been made, its decision would not necessarily have been the same: R. v. Kinch (2004), 2 M.V.R. (5th) 85 (S.C.J.). If Trisan were able to establish due diligence concerning its obligations, the outcome at trial should not be set aside.

[31] I am unable to conduct a meaningful review of the trial court's determination of the due diligence issue given the lack of detail in its reasons. However, the existing record appears to be comprehensive in this regard. As I have said, a good deal of evidence was called at trial about due diligence although, as far as I can determine, not specifically correlated in submissions to s. 106(1) and s. 106(2)(b). Moreover, given the absence of contradictory evidence, there is no apparent need for an assessment of the credibility of witnesses in a re-consideration of the issue.

[32] Thus, rather than directing a new trial, I intend to carry out a re-consideration of the due diligence issue as part of this appeal. To do so I need the further assistance of counsel in marshalling the evidence and arguments on which their clients rely on this point. The hearing of the appeal will be adjourned to a date to be fixed by the trial coordinator for these submissions.

Released: October 20, 2017

Signed: Justice C.M. Harpur