SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-408344

DATE: 20130122

RE: The Technical Standards and Safety Authority, Respondent

AND:

Fujitec Canada Inc., Appellant

BEFORE: Pollak J.

COUNSEL:
Tom Ayres and Raj Bharati, for the Respondent

Neal J. Smitheman and Antonio Di Domenico, for the Appellant

HEARD: April 3 and 4, 2012; November 5 and 6, 2012

AMENDED ENDORSEMENT

Facts

[1] The Appellant, Fujitec Canada Inc. (“Fujitec”), appeals from the decisions of Justice Young of the Ontario Court of Justice, dated March 28, 2008, July 12, 2010, October 20, 2010 and June 27, 2011, pursuant to section 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33.

[2] For the reasons that follow, the appeal is dismissed.

[3] After an elevator failure which injured five persons, Fujitec, the elevator maintenance contractor for 522 University Avenue, was charged by the Technical Standards and Safety Authority (the “TSSA”, the designated administrative authority for elevating devices in Ontario) with five counts under the Technical Standards and Safety Act, 2000, S.O. 2000, c. 16 and Ontario Regulation 209/01 (Elevating Devices) (“Regulation 209/01”):

(a) Count 1: failing to inspect and examine at regular intervals the parts and functions of an elevating device, contrary to paragraph 32(3)(a) of Regulation 209/01;

(b) Count 2: failing to repair or replace worn or defective components of an elevating device in order to prevent the device from becoming unsafe for operation, contrary to paragraph 32(3)(b) of Regulation 209/01;

(c) Count 3: failing to ensure that an elevating device is in a safe operating condition, contrary to subsection 32(4) of Regulation 209/01;

(d) Count 4: failing to maintain a log book that contains up-to-date data, contrary to subsection 34(1) of Regulation 209/01; and

(e) Count 5: causing or permitting an elevating device to be operated in an unsafe condition, contrary to subsection 9(1) of Regulation 209/01.

[4] Justice Young, after carefully setting out in detail the submissions of all the parties, and considering all of the evidence:

(a) convicted Fujitec of all five charges;

(b) stayed Counts 2 and 3—but refused to stay Count 5—pursuant to the Kienapple principle; and

(c) ordered Fujitec to pay:

(i) $100,000 for Count 1;

(ii) $30,000 for Count 4;

(iii) $270,000 for Count 5; and

(iv) a 25 per cent victim surcharge, bringing the total fine to $500,000.

[5] Fujitec’s Amended Notice of Appeal asserts that:

• Justice Young erred in law and mixed fact and law by finding Fujitec guilty of the charges in the Information;

• Justice Young erred in law by finding that the court had jurisdiction over the offences in the Information when the original Information was and remains lost;

• Justice Young erred in law and mixed fact and law by failing to stay the conviction on count five in the Information; and

• Justice Young erred in law and mixed fact and law by imposing a sentence that was unreasonable and excessive.

[6] The Provincial Offences Act, s. 120(1)(a) provides that this court may grant the appeal if:

(a) the conviction should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;

(b) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or

(c) on any ground, there was a miscarriage of justice.

[7] The appeal may be dismissed under s. 120(1)(b) if:

(a) although the appellant was not properly convicted on a count or part of an information, it was properly convicted on another count or part of the information;

(b) the appeal is not decided in favour of the appellant on any of the grounds referred to above; or

(c) although the appeal might be decided in favour of the appellant, the court finds that no substantial wrong or miscarriage of justice has occurred.

[8] The TSSA agrees with Fujitec’s description of the standard of review test set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 and submits that the following principles are relevant:

(a) On an appeal, the standard of review on a question of law is correctness, whereas the standard of review for findings of fact (including inferences of fact) is palpable and overriding error.

(b) Questions of mixed fact and law involve applying a legal standard to a set of facts. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Where the legal principle is not readily extricable, then the matter is one of mixed law and fact and is subject to a more deferential standard.

(c) The general rule is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

[9] Fujitec submits that as Justice Young made a number of legal errors, they are reviewable on a standard of correctness.

[10] The TSSA submits that Fujitec has not established that any alleged error was caused by the misapplication of a principle of law or an error arising from a question of mixed fact and law.

[11] Further, the TSSA emphasizes that Fujitec has not alleged that any of the convictions cannot be supported by the evidence, or that a miscarriage of justice has occurred.

[12] The TSSA submits that the grounds for appeal (with the possible exception of the jurisdictional issue) are based on the trial judge’s findings of fact, inferences of fact, and conclusions on questions of mixed fact and law. It is therefore submitted that the applicable standard of review on all of the issues in this appeal (except the jurisdictional issue) is one of reasonableness—i.e. palpable and overriding error, the most deferential standard of review.

[13] Finally, the TSSA submits that Fujitec must show that any error results in a “substantial wrong or miscarriage of justice”.

Jurisdiction

[14] Fujitec submits the court did not have jurisdiction over the offences alleged in the Information because the original Information was, and remains, lost.

[15] The TSSA’s position is that the Court had jurisdiction.

[16] The Information was sworn on January 23, 2007. A duplicate Information was also sworn and kept by the TSSA.

[17] The TSSA relied on the duplicate Information, as the original Information could not be found. Fujitec submitted at trial that there should be an adjournment so that if the Original Information could not be found within a reasonable period of time, it could be declared lost, which would result in the court’s loss of jurisdiction over the offences.

[18] The judge ruled that reliance on a true copy of the Information was consistent with common sense and would not cause any prejudice to Fujitec.

[19] Fujitec argues that only through the original Information can a court have jurisdiction over a criminal offence. It submits that there is no jurisprudence to support the judge’s finding that a lost Information can be replaced with a photocopy or a sworn duplicate. Fujitec relies on jurisprudence establishing that the Information must exist and be found for a court to have jurisdiction.

[20] In response, the TTSA relies on R. v. Toronto (City), 2011 ONCJ 131, [2011] O.J. No. 1293, wherein the court accepted a duplicate of the Information when the original was lost.

[21] The TSSA also submits that the ruling of the judge is consistent with the overall philosophy of the Provincial Offences Act—“to ensure that technical objections do not impede the arrival of a verdict on the merits” (Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 16893 (ON CA), 58 O.R. (3d) 37 (C.A.) at para. 21).

[22] I agree with the submissions of the TSSA that the Court had the jurisdiction to deal with the offences. Further, I agree that if Justice Young had erred in law as alleged by Fujitec, “no substantial wrong or miscarriage of justice occurred”.

(continues exactly as in the judgment…)

Pollak J.

Date: January 22, 2013