R. v. Wal-Mart Canada Corp., 2017 ONSC 6726
CITATION: R. v. Wal-Mart Canada Corp., 2017 ONSC 6726
COURT FILE NO.: 1665/16 (AP)
DATE: 2017-11-08
ONTARIO
SUPERIOR COURT OF JUSTICE
(APPEAL)
BETWEEN:
HER MAJESTY THE QUEEN (Ministry of Labour)
Respondent
- and -
WAL-MART CANADA CORPORATION
Appellant
COUNSEL:
Dan Phelan, for the Respondent
Robert W. Little, for the Appellant
HEARD: February 13, 2017
REASONS FOR JUDGMENT
On appeal from a Decision of the Ontario Court of Justice at Brampton, ON, delivered May 6, 2016
BARNES J.
INTRODUCTION
[1] On May 6, 2016, Justice N. Kastner of the Ontario Court of Justice, convicted Walmart Canada Corporation (Appellant) of failing as an employer to ensure that the measures and procedures prescribed by section 11 of Regulation 851: Industrial Establishments, O. Reg. 851/90 (Regulation) as amended, were carried out at a workplace located at 30 Coventry Road, Brampton, Ontario, contrary to Section 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c.01 as amended (OHSA).
[2] Walmart Canada Corporation appeals this decision. I have concluded the appeal shall be dismissed. These are my reasons.
BACKGROUND FACTS
[3] Lorenzo Tagliacozzo was employed by the appellant for 14 years. On September 20, 2013, he was working at the Appellant’s superstore in Brampton. He was moving skids of toilet paper from a trailer in the receiving area to the retail area of the store using a manual skid jack.
[4] Dino Novielli, a co-worker, was at the cardboard machine, which is located beside the trailer door. He was at this location for one or two minutes and observed an empty skid in an aisle. Mr. Novielli observed Mr. Tagliacozzo move out of the trailer, backwards, with a skid. He said Mr. Tagliacozzo made no effort to avoid the empty skid in the aisle and backed right into it. He fell on his bottom and hit his head against packages of toilet paper piled on the other side of the skid.
[5] Mr. Tagliacozzo complained about pain in his head and his hand. Neither he nor any other worker reported the incident that day. The next day, Mr. Tagliacozzo reported the incident by phone. He was asked to come into work and make a formal report which he did. He did not return to work again. Mr. Tagliacozzo died on October 5, 2013. The Crown did not allege that the incident was a contributing factor to his death.
ISSUES
[6] The Appellant raises the following issues on appeal: (1) did the trial judge err in law in concluding that the placement of the empty skid constituted a “hazard or obstruction” under section 11 of the Regulation, and (2) did the trial judge err in concluding that the defence of due diligence was unavailable to the Appellant?
[7] The standard of appellate review in relation to questions of fact or mixed fact and law is palpable and overriding error. The standard of review for questions of law is correctness: R v. Stelco Inc., 2006 CanLII 28110 (ON SC), [2006] O.J. No. 3332 (S.C.), at paras. 6-9; Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769, [2007] O.J. No. 4339, at para. 6; and Ontario (Ministry of Labour) v. Hamilton (City), 2002 CanLII 16893 (ON CA), [2002] O.J. No. 283 (C.A.), at para. 16. The Appellant raises issues of mixed fact and law; therefore, the standard of review in this case is palpable and overriding error.
[8] Section 120 of the Provincial Offences Act, R.S.O. 1990, c. P.33 authorizes an appellate court to set aside a conviction where it is of the opinion that:
i. The findings should be set aside on the ground that they are unreasonable or cannot be supported by the evidence;
ii. The judgment of the trial court should be set aside because the court reached the wrong decision on a question of law; or
iii. On any other ground, where there is a miscarriage of justice.
Did the trial judge err in law in concluding that the placement of the empty skid constituted a “hazard or obstruction” under section 11 of the Regulation?
[9] The trial judge did not err in concluding that the placement of the empty skid constituted a “hazard or obstruction” under section 11 of the Regulation.
[10] A purposive approach must be adopted when interpreting legislation. The intent of the legislature or the purpose of the legislation must be considered. The ordinary meaning of the legislation is the most appropriate or intended meaning. The consequences of adopting a proposed interpretation must also be taken into account: Elmer A. Driedger and Ruth Sullivan, Sullivan and Driedger on Construction of Statutes, 4th ed. (Markham: Butterworths, 2002), pp.3, 19-31, 34.
[11] Public welfare legislation is drafted in broad and remedial terms. It is designed to promote public safety in a wide variety of circumstances. Therefore, such legislation is to be interpreted liberally in order to give effect to its broad purpose and objective: Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, [2013] O.J. No. 520, at paras. 24, 26.
[12] OHSA and the Regulation do not seek to achieve the impossible; namely, a risk-free workplace: Ontario (Ministry of Labour) v. Sheehan’s Truck Centre Inc., 2011 ONCA 645, [2011] O.J. No. 4510, at paras. 28-30. Rather, the purpose of OHSA and the Regulation is to promote a reasonable level of health and safety protection for workers across Ontario.
[13] Section 11 of Regulation 851 states:
A floor or other surface used by any worker shall,
a) be kept free of,
i. obstruction,
ii. hazards, and
iii. acclamations of refuse, snow or ice; and
b) not have any finish or protective material used on it that is likely to make the surface slippery. R.R.O. 1990, Reg. 851, s. 11.
[14] The trial judge concluded that a purposive interpretation of section 11 of the Regulation was required. The trial judge observed that OHSA and the Regulation are intended to promote public safety in the context of employment. For this reason, an ordinary prudence standard should not be imported into the definition of an “obstruction or hazard” under section 11 of the Regulation. Such an expansive interpretation would render OHSA and the Regulation nugatory: Reasons for Decision, paras. 124–148.
[15] The trial judge concluded that the empty skid in the aisle constituted a hazard or obstruction as contemplated by section 11 of the Regulation: Reasons for Decision, para. 148.
[16] The Appellant submits that the trial judge is in error. The Appellant correctly submits that the onus is on the Crown to establish, beyond a reasonable doubt, that the skid in the aisle was an obstruction or hazard within the meaning of section 11 of the Regulation: R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] S.C.J. No. 59.
[17] The Appellant explains that a contextual analysis is required. In the context of a retail store, skids are routinely found throughout the store because they are used to stock and restock merchandise. Skids are stored in a specific location depending on whether they are empty or full; however, whenever necessary, empty or full skids are placed in the aisles, albeit for a short period. The skids must be moved in order to restock the store.
[18] Given these circumstances, the Appellant argues it is wrong to conclude that a skid temporarily placed in an aisle constitutes a “hazard or obstruction”. The Appellant argues that a requirement of ordinary and reasonable prudence should be imported into the determination of what is considered an obstruction or hazard under the Regulation.
[19] The Appellant relies on the approach taken by the Court in Casey’s Bar and Grill Restaurant, Unreported, January 23, 2009 (Ont. C.J.), at paras. 80-81. In that case, a restaurant employee slipped on a wet floor of his own making. While mopping the floor, he slipped and accidentally placed his hand in the deep fryer which was located nearby.
[20] The Court in Casey’s expressed concern that while a wet floor is a hazard, an analysis that does not consider the “who, when, why and how” of the situation could result in a circumstance where an employer, who has to keep the floors clean, can be found to have created a hazard by doing the very thing the employer is required to do. This would be an absurd result.
[21] With respect, I do not agree with the approach taken in Casey’s. I agree with the trial judge that the approach taken in Casey’s conflates the genesis of the offence or the actus reus, which is in this case the creation of the hazard or obstruction, with the available defence to the offence, namely due diligence.
[22] The breach of section 11 is a strict liability offence. However, the fact that an actus reus is established beyond a reasonable doubt does not on its own establish guilt. Section 66(3) of the OHSA provides the accused with the opportunity to escape liability by proving, on a balance of probabilities, that the accused exercised the requisite due diligence.
[23] The Court of Appeal decision in R. v. Prince Metal Products Ltd., [2011] O.J. No. 6450 (C.J.), while not a case that addresses section 11 of the Regulation, is relevant. At paragraph 15, the court quotes with approval the following comment in R. v. Seeley & Arnhill Aggregates Ltd., [1993] O.J. No. 443 (Gen. Div.) on the nature of the offence and the available defence:
A hazard can include a chance event such as an accident. If the Crown proves a fall by a worker more than three meters took place while doing work required by the employer, it prima facie imports the offence. It does not matter if it was caused by accident, negligence, recklessness or willful neglect. If it occurred in a place where one might reasonably expect it not to take place, such a fact would be considered in the defence of due diligence or even mistake.
[24] The definition of actus reus in the Canadian Oxford Dictionary is “action or conduct which is a constituent element of the crime, as opposed to the mental state of the accused”. At issue here is whether there has been conduct creating an obstruction or hazard. An “obstruction” is defined as a thing that impedes or prevents passage. A “hazard” is defined as a danger or risk, including the source of such a danger or risk.
[25] Conduct that creates a hazard or obstruction in the work place, when proven beyond a reasonable doubt, is sufficient by itself to constitute a hazard or obstruction under the Regulation. Issues of “when, why, how and who” are not relevant to a determination of the actus reus. Such issues are properly considered when assessing whether the accused can escape liability by relying upon the due diligence defence.
[26] The trial judge properly applied the above principle when she found that placing the empty skid in an aisle, particularly in a location where a person operating a loaded skid was required to make an angled turn, is a hazard or obstruction. This finding is correct in law and supported by the evidence.
Did the trial judge err in concluding that the defence of due diligence was unavailable to the Appellant?
[27] The trial judge did not err in concluding that the Appellant had failed to discharge its burden of proving, on a balance of probabilities, that it should escape liability under the due diligence defence.
[28] Section 66(1) of the OHSA creates the offence of failure to comply with the provisions of OHSA and the Regulations and/or failure to comply with orders of authorized persons issued under OHSA and the Regulations. Section 66(2) of the OHSA states that corporations convicted of an offence under subsection (1) may face a fine of up to a maximum of $500,000. An accused is liable for the actions of its managers, agent, representative, officer, director or supervisors: OHSA, s. 66(4).
[29] According to section 66(3) of OHSA, this charge is a strict liability offence. The Crown must prove the actus reus, that is, the prohibited act, beyond a reasonable doubt. The Crown is not required to prove mens rea. Once the Crown proves the prohibited act beyond a reasonable doubt, the defence can escape liability if it proves, on a balance of probabilities, that it exercised the requisite due diligence. The Supreme Court of Canada explains this defence in Sault Ste. Marie (City), at para. 60:
Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.
[30] Therefore, under the due diligence defence, the accused can escape liability in two ways: (1) if the accused believed in a mistaken set of facts which will render the omission or act innocent, or (2) if the accused took all reasonable steps to avoid the incident: Sault Ste. Marie, at para. 60.
[31] The due diligence taken must be specific to the hazard in issue. Employers must take every reasonable precaution to protect their employees in the work place. The reasonable care is inextricably linked to the factual settings of each case. Thus, 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.), at para. 22.
[32] The Appellant submits the Crown’s evidence, given a generous reading, only indicates that an experienced employee, in performing a simple task that he had performed routinely on several occasions, tripped on an empty skid. Even if the skid constituted an obstruction or hazard, trip hazards exist everywhere and are not unique to the Appellant’s workplace. Trip hazards are routine occurrences that require minimal care to avoid. Therefore, the standard of care in this case falls at the lowest end of the spectrum.
[33] The Appellant submits that there is uncontradicted evidence that it continually made its employees aware of trip hazards, assessed employees on their safety performance, and held them to account when their performance fell below its expectations. The Appellant submits there is evidence that it trained employees on the equipment they used and that the equipment used was no more complicated to operate than using a child’s wagon. The Appellant submits the equipment in question had been used by the deceased routinely over his 14 years of employment, and that he had been retrained on its use in 2012 and in 2013.
[34] The Appellant submits that there was evidence at trial that it had systems in place to ensure that the aisles remained clear. Further, there were monthly inspections of the aisles by the safety team and daily inspections of the aisles by the store manager. It submits there was a specific storage location for empty skids. The Appellant submits there was no evidence of skids left in the aisles on any previous occasion, and there was no evidence to suggest that this instance was anything but a single isolated incident.
[35] The Appellant argued that trial judge applied an unreasonably high standard in rejecting its due diligence defence, ignored uncontradicted evidence, and misapprehended certain evidence. The Appellant provided several examples of instances where it submits the trial judge either misapprehended evidence or drew inferences the Appellant considered unreasonable.
[36] The Respondent submits that the trial judge did not misapprehend or ignore evidence. The Respondent submits that the trial judge carefully considered all the evidence to arrive at her conclusion that the Appellant had failed to discharge its burden of proving the defence of due diligence.
[37] After providing very thorough reasons, the trial judge concluded her reason for the decision, as follows:
I find the Crown has established the actus reus that the employer failed to keep the floor used by the worker free of obstructions, hazards and refuse beyond a reasonable doubt.
The onus then shifts to the defendant in an attempt to establish due diligence on a balance of probabilities.
Walmart has many laudable training modules, and an active Safety Committee.
No doubt, the defendant had policies and procedures in place to address the concerns for a safe workplace. The issue is not whether such measures existed, but the implementation of them.
The issue is case specific in this instance; for example, whether Mr. Tagliacozzo was sufficiently trained in the operation and movement of the pallet jack; whether he saw or should [have foreseen] the obstruction on the warehouse floor in the area for unloading; whether a supervisor should have been present; the effectiveness of the sweep program in the warehouse, etc.
The Court has considered all of the Gondor factors of the standard of care as it pertains to the circumstances of this case.
I find that the absence of the missing safety sweep logs for the backroom area results in a failure of reliable proof that it is more likely than not that every precaution reasonably available in the circumstances was taken.
The evidence of the store manager falls short of satisfying the Court on a balance of probabilities that the warehouse floor was kept free of obstructions during its Anniversary Sale in the time period the incident occurred.
Therefore, I find the defendant has not met its onus of establishing due diligence on a balance of probabilities, and Walmart Canada Corp. will be found guilty of the charge.
Reasons for Decision, at paras. 206-214.
[38] Several of the Appellant’s arguments constitute an attempt to retry the case, and in some instances, express disagreement with the trial judge’s findings of credibility. The trial judge was uniquely suited to determine the issues because the matter required the assessment of witness credibility. As such, there is no reason to interfere with the trial judge’s findings on appeal.
[39] In her thorough reasons, the trial judge applied the correct legal principles. The trial judge was alive to the fact that the burden of proof on the due diligence defence rests with the Appellant. Within the context of the case, she appropriately considered the effects of the presence and absence of relevant evidence. The trial judge applied the correct burden of proof, on a balance of probabilities, to the Appellant’s evidence regarding its due diligence defence.
[40] The trial judge’s conclusions are supported by the evidence. Interference with these findings on appeal is unwarranted. The appeal is dismissed and the conviction at trial is upheld.
Barnes J.
Released: November 8, 2017
CITATION: R. v. Wal-Mart Canada Corp., 2017 ONSC 6726
COURT FILE NO.: 1665/16 (AP)
DATE: 2017-11-08
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL)
BETWEEN:
HER MAJESTY THE QUEEN (MINISTRY OF LABOUR)
Respondent
- and -
WAL-MART CANADA CORPORATION
Appellant
REASONS FOR JUDGMENT
Barnes J.
Released: November 8, 2017