Ontario Court of Justice

Date: 2021 05 20

Between: Ontario (Ministry of Labour)

— And —

Ya Ya Foods Corp.

Before: Justice V. Rondinelli

Reasons for Judgment released on May 20, 2021

Counsel: D. McCaskill, for the Ministry of Labour J. Illingworth, for Ya Ya Foods Corp

Rondinelli J.:

[1] Ya Ya Foods Corp. is charged with three offences:

• Failing as a constructor, to ensure that the provisions of s. 26.1(1) of Ontario Regulation 213/91 were complied with at a workplace located at 450 Kipling Ave, Etobicoke, ON, contrary to s. 23(1)(a) of the Occupational Health and Safety Act;
• Failing as a constructor, to ensure that the provisions of s. 26.1(2) of Ontario Regulation 213/91 were complied with at a workplace located at 450 Kipling Ave., Etobicoke, ON, contrary to s. 23(1)(a) of the Occupational Health and Safety Act; and
• Failing as a constructor, to comply with the provisions of s. 6(3) of Ontario Regulation 213/91, at a workplace located at 450 Kipling Ave., Etobicoke, ON, contrary to s. 23(1)(a) of the Occupational Health and Safety Act.

[2] The charges arise from an incident that occurred in the morning of January 11, 2018 at the defendant’s beverage manufacturing facility at 450 Kipling Avenue. On that morning, Melvin Joyner was working on an elevated platform when he fell over 9 feet to the ground and suffered a fatal head injury.

[3] I should note at the outset that much of the evidence presented at the trial was not in dispute and neither party took issue with the credibility of any of the witnesses. It is clear from the evidence that Mr. Joyner was a very experienced and well-respected individual in his field.

[4] Since the defendant is being charged as a “constructor” in relation to all three alleged offences, the Ministry must first prove beyond a reasonable doubt that Ya Ya Foods meets the definition for "constructor” found in s. 1(1) of the Occupational Health and Safety Act (“OHSA”). That is, “a person who undertakes a project for an owner and includes an owner who undertakes all or part of a project by himself or by more than one employer.”

[5] The OHSA does permit an owner to oversee a project for quality assurances purposes without necessarily becoming a constructor. Section 1(3) of the OHSA limits the definition of a constructor on a site as follows:

An owner does not become a constructor by virtue of the fact that the owner has engaged an architect, professional engineer or other person solely to oversee the quality control at a project.

[6] Unlike many of the cases referred to by counsel, there was no clear indication at the outset of the work undertaken by Mr. Joyner of who would be designated the constructor and what the scope of the “project,” as that term is defined in the OHSA, entailed. Trying to now assign roles in a retrospective manner raises difficulties like those observed by the court in Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P.S. Sidhu Trucking Ltd., 2012 YKSC 47 at para. 103:

[103] There is merit in giving effect to this term of the Contract as it indicates the intention of the owner and the contractor as to which would be the constructor. I agree that, in principle, there should be one constructor on a project and, in my view, it is preferable that its identity be made clear at the outset to ensure workplace safety. I disagree with the submission of counsel for the Director that the role of each party under the OHS Act should be determined retrospectively by looking at the facts and determining which definition fits which party. That appears to me to be a recipe for confusion on a construction site, where the protection and safety of the workers and the public require everyone on the site to know their obligations under the OHS Act and Regulations at the outset of the Project. That said, there is certainly a continuing role for the control test where there may be doubt about who the constructor is or where a constructor is not designated.

[7] Like the term “constructor”, the “project” itself was not explicitly designated at the outset of Mr. Joyner’s involvement in this case. “Project” is defined in s. 1(1) of the OHSA as:

“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;

[8] It is important to note that a project may be comprised of more than one designated separate projects. Section 4 of O. Reg. 213/91 states:

4. A Director may designate in writing a part of a project as a project and the designated project is considered to be a project for the purposes of the Act and this Regulation.

[9] There is no evidence that any such designation was granted in this case pursuant to that section.

[10] From the documentary evidence tendered at the trial and the testimony of Yahya Abbas, President and Director of Ya Ya Foods, I find that the project in this case was the installation of Line 11. The installation of Line 11 required three main parts to make it operational: 1) the installation of a depalletizer machine; air conveyors; and erection of a catwalk and platform structure; 2) the dismantling and removal of an old filler in Bay 3; and 3) electrical work in relation to the new depalletizer.

[11] Without any clear designation of who the constructor would be for Line 11, it is necessary to consider the “control test” to determine who had the most commitment to and control of the project. The more control a company exerts, the more likely it is the “constructor”: See Ontario (Ministry of Labour) v. Reid & DeLeye Contractors, 2011 ONCJ 472 at para. 42.

[12] In adopting and applying this “control test” I have considered all of the evidence presented at the trial, including the following:

• That Texas Melco was contracted to install a depalletizer, air conveyors and perform any other work needed in preparation for Line 11 which included the mezzanine and catwalk around it;
• That Texas Melco brought its own tools, including safety equipment, except for a Forklift and Genie Boom;
• That no Ya Ya employees used any of Texas Melco’s tools;
• That the work that Texas Melco was contracted for was undertaken only by Texas Melco or subcontractors of Texas Melco (eg. Moose Drywall);
• That Texas Melco employees and its subcontractors were paid exclusively by Texas Melco;
• That Texas Melco employees and its subcontractors took direction exclusively from Mr. Joyner;
• That materials required for the project were paid by Ya Ya Foods, but only at the direction of Mr. Joyner;
• That the area where the depalletizer was being constructed was taped off and only Texas Melco employees and subcontractors worked within that area;
• That the dismantling and removal of the filler in Bay 3 by Ya Ya Foods employees was necessary for the ultimate completion of Line 11;
• That Mr. Joyner provided regular updates to Mr. Abbas about the progress of the project;
• That the electrician required for the installation of Line 11 was contracted by Ya Ya Foods after the date of the incident; and
• That Mr. Abbas filed a Notice of Project on January 12, 2018 designating Ya Ya Foods as the constructor of the project.

[13] Considering all of these factors, it appears that Mr. Joyner had most control over the Line 11 project at the time of the incident. While Mr. Abbas may have performed a certain supervisory role, he did not step into the role of “constructor” until January 12, 2018. Ya Ya Foods may have been paying all of the bills that Mr. Joyner generated, but as Justice Lische noted in Her Majesty The Queen (Ministry of Labour of Ontario) v. The Corporation of the City of Greater Sudbury unreported dated August 31, 2018 at para. 76, “It is not surprising or uncommon for the Owner to hold the purse strings over a project. The Owner is the one who pays the Constructor for the work performed.”

[14] Furthermore, even though Ya Ya Foods ultimately contracted the services of an electrician to assist with the project, this was only done when Ya Ya Foods took over the project after the tragic passing of Mr. Joyner. Mr. Abbas’ evidence was clear that if Mr. Joyner was still in the picture, the electrician would be taking direction from Mr. Joyner and it would be Mr. Joyner who would be providing the electrician with “the concept of the logic.”

[15] And speaking of taking over the project. Indeed, Mr. Abbas did file a Notice of Project on January 12, 2018, designating Ya Ya Foods as the constructor. But Mr. Abbas testified that this was because practically speaking, he had no choice since Mr. Joyner was no longer available. As Mr. Abbas stated, a project that would have taken Mr. Joyner 2 weeks to complete ended up taking “10 weeks to finish and 10 times the cost,” because nobody in Canada had the skill and expertise that Mr. Joyner possessed. This further highlights the control Mr. Abbas had entrusted Mr. Joyner with the Line 11 project.

[16] Lastly, I am not convinced that the dismantling of the filler by Ya Ya Foods employees amounts to “construction” under the OHSA and is more in line with being “industrial” since the activity was carried out on machinery or equipment already in place: See St. Mary’s Cement Company v. The Minister of Labour, [1996] O.O.H.S.A.D. No. 37 at para. 40. As Peter Kourniotis testified, the filler had been decommissioned at least as long as he had started at Ya Ya Foods in 2016 and he started dismantling it prior to January 2018. Mr. Kourniotis also testified that it was a common task of his to move around machinery like this filler, although the size of this particular filler was no “cake walk.”

[17] In the end, I’m reminded that the defendant does not have to prove that Ya Ya Foods is not a constructor or that Texas Melco/Melvin Joyner was. That onus rests on the Ministry. And while I may have found some evidence to satisfy that onus at the directed verdict stage, I simply am not convinced beyond a reasonable doubt that Ya Ya Foods was a constructor in relation to the charges before the court. As such, all charges against Ya Ya Foods are dismissed.

Released: May 20, 2021