Court Information

Ontario Court of Justice

Date: September 16, 2019

Court File No.: Cornwall, ON 3960-999-8869977B-00

Parties

In the Matter of an appeal under subsection 135 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Appellant

— And —

H & I Enterprises Vankleek Limited Respondent

Judicial Information

Before: Justice D.A. Kinsella

Heard on: May 27, 2019

Reasons for Judgment released on: September 16, 2019

Counsel:

• Andrew McAllister, for the prosecution
• Julie Bergeron, for the defendant H & I Enterprises Vankleek Ltd.

On appeal from: An acquittal by Justice of the Peace Winchester on March 27, 2018

Decision

KINSELLA J.:

Overview

[1] H & I Enterprises Vankleek Ltd, operating as Herb's Truck Stop, was charged with selling tobacco to a person who is less than 19 years of age contrary to section 3(1) of the Smoke Free Ontario Act (SOFA).

[2] Prior to its repeal in October of 2018, this version of SOFA included the following:

3 (4) The owner of a business where tobacco is sold shall be deemed to be liable for any contravention of subsection (1) or (2) on the premises where the contravention took place, unless the owner exercised due diligence to prevent such a contravention. 2005, c. 18,

[3] The facts were not largely in dispute in this case. On July 16, 2015 a 17-year old female purchased a package of cigarettes at the truck stop's convenience store. The clerk did not ask the purchaser for her identification. Hubert (Herb) Vink is the president of H & I Enterprises. His corporation, which operates as Herb's Towing, Herb's Travel Plaza and Herb's Truck stop, employees approximately 65 – 100 employees, 8 of whom work in the convenience store.

[4] The parties agree that this is a strict liability offence, meaning the defence of due diligence was available to the Respondent. The Appellant alleges that the learned Justice of the Peace erred in her conclusion that the Respondent met his burden. Specifically, the Appellant alleges the following errors on the part of the learned Justice of the Peace:

i. She did not give proper consideration to the evidence of prior notices of failure to comply with the legislation;

ii. She failed to properly consider the defence of due diligence and in doing so disregarded binding authority from the Court of Appeal; and

iii. She erred in her factual finding that the Respondent had taken all reasonable steps in the circumstances.

Scope of Appellate Review

[5] This appeal is pursuant to Section 135 of the Provincial Offences Act. An appeal under section 135 of Part I offences is conducted by means of a review. This is quite different than appeals from proceedings under Part III, as this court's ability to intervene is not limited. This court is not required, for example, to find that the judgement at trial was unreasonable, unsupported by the facts, or erroneous in law. The language that defines the conduct of the appeal under s. 136(1) speaks in terms of a broad-based review with generous allowances to all parties to ensure that the issues are fully and effectively defined and fairly and completely considered. A judge sitting on appeal is entitled to consider all the evidence and come to her own conclusion (see R. v. Michaud 2015 ONCA 585.)

[6] Despite these broad powers, there are some practical limitations. As noted by Justice Duncan in Regina v. Gill, [2003] O.J. No. 4761, at paragraph 10, "it could not have been the intention of the legislature that the Provincial Offences Appeal Court re-try every case." Justice Duncan went on to observe that this is particularly true when dealing with the assessment of credibility, and that considerable deference should be given to the trial justice's findings unless they are unreasonable.

Improper Consideration of Prior Notices of Failure

[7] The Appellant submits that the learned Justice of the Peace erred in her decision when she determined that the prior notices of failure were not relevant to her analysis because they had been dismissed.

[8] As noted by the Appellant in his factum, the law with respect to tobacco control legislation establishes the principle that greater care is required of a vendor once he has been made aware of prior failures in their education and training system. In R. v. Sobeys Inc., [2000] N.S.J. No. 32, the Nova Scotia Supreme Court held that the defence of due diligence is not available:

…when a retailer or vendor is on notice that policies and procedures established to ensure both the existence of a proper system to prevent commission of the offence and that reasonable steps had been taken to ensure effective operation of the system in supervising this operation, were not effective [at paragraph 62]

[9] This principle has been adopted in several Ontario decisions.

[10] It is important to add, however, that this principle has its limitations. It is clear that, regardless of whether or nor there have been prior failures, the defence of due diligence must be considered in the context of what was known at the time of the offence rather than what was discovered with the benefit of hindsight.

[11] Exhibit 5, filed at the trial, sets out the history of enforcement at Herb's Truck Stop by the Ministry of Health and Safety. It shows that, starting in July of 2009, the clerk and the company were issued a warning after a compliance check resulted in a sale to an underaged person. In September of 2010 a Part I ticket was issued to a clerk for a sale to an underaged person and in October of 2010 a Part I ticket was issued to the corporation for the same sale. In March of 2011 a Part I ticket was issued to a clerk for an underaged sale. While it appears a charge was issued against the company as well, that was dismissed after the test shopper did not appear for trial. In July of 2011 a Part III summons was issued against the company, although it is not clear if that was for the same sale from March of 2011. In August of 2011 another Part I ticket was issued to a clerk for a sale to an underaged person.

[12] On February 4, 2013, a charge against H & I Enterprises (presumably the Part III offence noted above) was stayed by the prosecutor after he received documentation of the updated training materials the company was now using. This training material was described as "substantial" by one of the inspectors from the Ministry. The transcript for the stay of proceedings was filed as exhibit 9 of the trial.

[13] It is important to note this because, after the Part I ticket was issued in August of 2011, there were a further seven compliance checks from March of 2012 to March of 2015. Each of these checks were successful as no sales to any underaged persons occurred. In fact, in March of 2015 Herb's Truck Stop received a letter from the Eastern Ontario Health Unit congratulating them for their compliance (filed at trial as exhibit 3). Of note, the employee who had correctly sought identification on that date was the same employee who made the sale at issue for this trial.

[14] If in fact the learned Justice of the Peace's ruling was that the prior notices were irrelevant because they had resulted in dismissals, that would be an error. It is not clear, however, from her decision that that was in fact her conclusion. She was not wrong, however, in her conclusion that they were irrelevant on the facts of this case. While there had been several notices between 2009 and 2011, the undisputed evidence is that substantial steps were taken by the business after 2011 to address the reasons for those notices and that those steps had the desired effect, namely three years of compliance with the legislation. It is difficult if not impossible to see how these facts could have amounted to putting the owner on notice that his system was not effective.

[15] For these reasons, this ground of appeal is dismissed.

Failure to Properly Consider Defence of Due Diligence

[16] The appellant alleges that the learned Justice of the Peace erred in her finding that she was permitted to consider some degree of flexibility in applying the standard of reasonable care for the defence of due diligence. More specifically, the appellant alleges that this conclusion on the part of the learned Justice of the Peace ignores binding authority from the Court of Appeal.

[17] R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 is the seminal case on due diligence. It establishes that the onus rests on the Crown to prove beyond a reasonable doubt the fact of non-compliance with the governing legislation. Once proven, the burden shifts to the defendant to establish on a balance of probabilities that all reasonable care was taken to avoid non-compliance.

[18] To meet the standard of "all reasonable care" a person does not to make "superhuman efforts" (R. v. Courtaulds Fibres Canada [1992] O.J. No. 1972.) What will amount to due diligence will by necessity be impacted by the facts in a particular case. As noted by Justice Barnes in the recent decision of Ontario (Ministry of Labour) v. Wal-Mart Canada Corp., [2017] O.J. No. 5818 (at paragraph 31):

a variable standard of care is required that can be raised or lowered in accordance with the special "circumstances of each factual setting": R. v. Gonder, [1981] Y.J. No. 16 (Yukon Terr. Ct.) …

[19] The appellant's submission appears to be that R. v. Seaway Gas & Fuel Ltd., [2000] O.J. No. 226 (Ont. C.A.), which does not mention this flexible approach, is binding on the trial justice. R. v. Seaway Gas, however, was decided on a very narrow issue, namely the interpretation of section 3(3) of the legislation. That section creates a defence to a charge of selling tobacco to a minor provided the seller believes the person was at least 19 years of age because (a) they produced a prescribed form of ID and (b) there was no apparent reason to doubt the authenticity of the identification or that it was issued to the person producing it. Furthermore, there was a related regulation which provided a list of prescribed identification.

[20] In the Seaway Gas trial decision, the learned Justice of the Peace concluded that the regulation was only a guide and that other forms of identification could be presented and relied on for the purpose of section 3(3). In over-turning that decision, the Court of Appeal noted that "the legislature has provided a statutory definition of what constitutes 'all reasonable care' for this offence" (at paragraph 20).

[21] It is clear from the Court of Appeal decision that the court is setting out the statutory limitations which have been placed on a defence under section 3(3) of the legislation. There is nothing in the decision which suggests that these limitations apply to other potential due diligence defences.

[22] This conclusion is supported recent Court of Appeal decision in of R. v. Pourlotfali [2016] O.J. No. 3254, at paragraph 54:

I would not therefore read Seaway Gas as saying that s. 3(3), which expressly provides for "a defence", is the only defence available to a charge under s. 3(1). Indeed, the Crown in this case argued that common law defences, including due diligence, remain available to someone charged under s. 3(1) of the SFOA.

[23] In this case, the Respondent was not advancing the defence under section 3(3). Since the Respondent was entitled to rely on the broader common law defence, which includes some element of flexibility, this ground of appeal fails.

"All Reasonable Steps"

[24] The Appellant alleges that the learned Justice of the Peace erred in her conclusion that the actions of the Respondent amounted to taking "all reasonable steps" and in particular that, in reaching this conclusion, she failed to properly consider the applicable jurisprudence.

[25] The Appellant cites several appellate decisions in support of this submission. These decisions are not binding but are instructive. They are also all fact-specific.

[26] In this case the learned Justice of the Peace, who had the opportunity of hearing from the witnesses and assessing credibility, found that the Respondent had taken the following steps:

• Signage about the requirement to provide identification was clearly posted on the counter;
• Quick age reference guides were available near the cash;
• Verification of age was available to staff using the lotto 6/49 machine;
• Every cash sheet provided (on an 8-hour basis) included a reminder that everyone under the age of 25 should be asked for identification when purchasing tobacco;
• His store had a "Smoke Free" binder which included a large amount of information and this was available for all staff to review;
• He had hired a company to conduct spot checks and when that company ceased to offer that service he asked underaged employees from other departments to do spot checks approximately 6 – 10 times per year;
• He hired managers who had the responsibility of directly supervising and training employees;
• Training would include verbal instructions, meetings, quizzes, as well as documentation which the employees were expected to sign;
• Meetings were held regularly with managers and employees and he would attend them approximately every three months;
• He would congratulate employees for their good work after positive inspections;
• The managers would report directly to him;
• Managers were responsible for holding regular meetings and were responsible to ensure that all paperwork was completed, including signatures by employees on worksheets;
• The Respondent's messages to his managers about his expectations were clear, unambiguous, and repeated; and
• When he learned, after the charge was issued, that his manager had not been maintaining the paperwork he fired her.

[27] These steps appear to have been taken after the 2011 charge and resulted in three years of positive compliance checks.

[28] As noted earlier, despite this appeal being a review, the trial justice is entitled to considerable deference especially as it relates to findings of credibility. Upon a consideration of the whole of the evidence, including the evidence of the inspectors about what they viewed as lapses in training, the learned Justice of the Peace concluded that the facts supported a finding on a balance of probabilities that the Respondent had taken all reasonable steps to ensure that tobacco was not sold to persons under the age of 19. There is nothing in the record before this court to suggest that this finding was unreasonable.

Conclusion

[29] The appeal is therefore dismissed.

Released: September 16, 2019

Signed: Justice D.A. Kinsella