K-Line Maintenance and Construction Limited v. His Majesty the King in Right of Ontario Ministry of Labour, 2022 ONCJ 556

ONTARIO COURT OF JUSTICE

DATE: 2022 12 01 COURT FILE No.: Halton 1260-17-9333-00

B E T W E E N :

K-LINE MAINTENANCE AND CONSTRUCTION LIMITED (APPELLANT)

— AND —

HIS MAJESTY THE KING IN RIGHT OF ONTARIO MINISTRY OF LABOUR (RESPONDENT)

Before: Justice Jennifer Campitelli Heard on: October 21, 2022 Reasons for Judgment released on: December 1, 2022

Counsel: Ryan J. Conlin and Jeremy D. Schwartz……counsel for K-Line Maintenance and Construction Limited Graeme Adams……counsel for His Majesty the King in right of Ontario (The Ontario Ministry of Labour, Immigration, Training and Skills Development)

CAMPITELLI J.:

[1] On July 6, 2016, workers at the Burlington Canal Lift Bridge used a rope attached to a machine to pull an aerial cable over the span of a bridge. That rope broke. The sudden release of tension caused the cable to rush backward over the span severely injuring Mr. Evan Brown, who was an employee of K-Line Maintenance and Construction Limited (K-Line).

[2] As a result of this workplace accident, the Ministry of Labour (the Crown) charged K-Line with five separate counts under the Occupational Health and Safety Act. A trial was held before his Worship Justice of the Peace M. Barnes over thirteen days between June 1, 2018, and December 4, 2018. The Justice of Peace discharged K-Line with respect to Counts #5 and #6 on October 29, 2018. However, he convicted K-Line with respect to Counts #1 through Count #4 on July 16, 2019. Count #2, Count #3 and Count #4 were conditionally stayed in accordance with the principles set out in R v. Kienapple, [1975] 1 S.C.R. 729 and K-Line was subsequently fined $150,000 plus the applicable victim fine surcharge with respect to Count #1.

[3] The Appellant appeals the four convictions but does not appeal the sentence imposed. Primarily, the Appellant argues that the Justice of the Peace erred by failing to provide adequate reasons for his decision, which resulted in K-Line being denied a meaningful right to Appeal. For the reasons that follow, I will allow the appeal, set aside the four convictions and order a new trial. The reasons provided by the Justice of the Peace on July 16, 2019, were neither factually nor legally sufficient and resulted in a miscarriage of justice. Given my ultimate conclusion with respect to the sufficiency of the reasons provided is determinative, I will not address the other grounds of appeal raised by the Appellant.

The Legal Framework

[4] Reasons for judgment must be both factually and legal sufficient. Factual sufficiency is concerned with what the trial judge decided and why. Factual sufficiency is ordinarily a very low bar, especially with the ability of the appellate court to review the trial record. Even if the trial judge expresses themselves poorly, an appellate court that understands the “what” and the “why” from the record may be able to communicate that understanding to the aggrieved party in its own reasons. It will be a very rare case where neither the aggrieved party nor the appellate court can understand the factual basis of the trial judge’s findings: R. v. G.F., 2021 SCC 20 at para. 71 citing R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 50 and 52.

[5] However, although a trial judge’s reasons have to be assessed within the context of the trial record, this does not mean that appellate courts simply engage in a reassessment of issues not resolved by the trial judge. Where the trial judge’s reasoning is not apparent from the reasons or the record, it is not for the appellate court to substitute its own analysis for that of the trial judge: R. v. Black, 2017 ONCA 599 at para. 40 (CA) Justice Pardu citing R. v. Dinardo, 2008 SCC 24 at para. 32. [1]

[6] Reasons for judgment are the primary mechanism by which judges account to parties and to the public for the decisions they render. Justice must not only be done but must be “seen” to be done. If judges fail to articulate the reasons for their actions, it is difficult to see how justice can be “seen” to be done. Where essential findings of fact and drawing of inferences is occurring, trial courts can only properly be held accountable if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 15.

Position of the Parties

[7] The Appellant argues that the reasons provided by the Justice of the Peace are wholly inadequate and have denied the Appellant a meaningful right to appeal. As such, there has been a miscarriage of justice in this matter. The Appellant submits it is impossible to glean from the reasons provided what evidence was considered, or what witnesses the trial Justice might have relied upon in reaching his ultimate determination. Moreover, the Appellant stresses it is not clear from either the trial record or the reasons provided what legal analysis the Justice of the Peace engaged in with respect to his assessment of the relevant issues. Simply put, with a view to all four counts where K-Line was convicted, the Appellant argues the reasons provided by the Justice of the Peace do not serve their requisite functional purpose. They are neither factually nor legally sufficient and do not permit effective appellate review.

[8] The Respondent stresses the reasons provided by the Justice of the Peace must be assessed within the context of the trial record. It urges the court to review the complete trial record in an effort to overcome any inadequacies it may identify with respect to the factual or legal sufficiency of the reasons provided. The Respondent argues that the reasons provided by the trial Justice with respect to all four counts provided K-Line with a meaningful right to appeal. There was no miscarriage of justice in this matter. Finally, when asked to address how the reasons provided by the Justice of the Peace address transparency and public accountability, the Respondent submits the public is able to gain access to transcripts, exhibits and request copies of any legal argument filed should the reasons provided not prove adequate to that end.

Analysis/Conclusion

[9] The reasons provided by the Justice of the Peace are factually and legally insufficient. Even when viewed in the context of the complete trial record, it is impossible to determine how the issues presented at trial were resolved. The reasons are silent with respect to any evidence accepted, rejected, or even considered by the trial Justice. It is unclear whether the Justice of the Peace made any findings of fact or drew any relevant inferences from the evidence presented; however, if he did, his reasons provide no transparency with respect to how such findings were arrived at. Finally, the reasons for judgment are completely silent with respect to any legal analysis the trial Justice may have engaged in with respect to the issues raised at trial. Without any such reference, it is impossible for effective appellate review to take place.

[10] I have reminded myself that “bad reasons” are not an independent ground of appeal and that if the trial reasons do not explain the “what” and the “why” but the answers to those questions are clear in the record, there will be no error: R. v. G.F., supra at para. 70 citing R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 38-40 and R. v. Sheppard, supra at paras. 46 and 55. However, I am also mindful that I must not engage in a reassessment of the issues not resolved by the Justice of the Peace: R. v. Black, supra at para. 40 (ONCA). The trial Justice’s reasoning is not apparent with respect to any of the four counts where he found K-Line guilty. As such, it is not appropriate for me, as the appellate court, to review the complete trial record and substitute my analysis of the relevant issues. Simply put, the reasons provided do not serve their requisite functional purpose.

[11] Judges and Justices of the Peace are accountable to the public for the judgments they render. The reasons provided by the Justice of the Peace in this instance lack the transparency and accessibility required for appropriate public oversight. When pressed on this issue, the Respondent argued that any lack of transparency is overcome by the public having access to the public record, copies of exhibits and any legal material produced to the court. I respectfully disagree. It is the responsibility of Judges and Justices of the Peace to fashion their reasons so that justice is “seen” to be done. There is no burden placed on the public in this regard, nor should there be. The Respondent’s argument on this point undermines the fundamental principles on which our justice system is premised.

[12] In the result, the reasons provided by the Justice of the Peace were both factually and legally insufficient. They denied the Appellant a meaningful appeal and resulted in a miscarriage of justice. It is “a very rare case” where neither the aggrieved party nor the appellate court can understand the factual basis for the trial judge’s findings: R. v. G.F., supra at para. 71. I find this is a very rare case. The appeal is allowed with respect to all four counts and a new trial is ordered.

Released: December 1, 2022 Justice Jennifer Campitelli

Footnotes

[1] Justice Pardu’s dissent was adopted by the Supreme Court of Canada: R. v. Black, 2018 SCC 10 at para. 3. The appeal was allowed, and a new trial was ordered.