CITATION: R. v. Sunrise Propane Energy Group Inc., 2017 ONSC 6954
COURT FILE NO.: CR-16-10000012-00AP
DATE: 20171127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF THE ENVIRONMENT AND CLIMATE CHANGE
Respondent
– and –
SUNRISE PROPANE ENERGY GROUP INC., 1367229 ONTARIO INC., SHAY BEN-MOSHE, and VALERY BELHOV
Appellants
Nicholas Adamson, Justin Jacob, for the Ministry of the Environment and Climate Change
Wes Wilson and Jai Dhar, for the Ministry of Labour
Leo Adler, for the Appellants
HEARD: 11-13 September 2017
s.a.Q. akhtar j.
[1] On appeal from the convictions entered by Justice Leslie Chapin on 27 June 2013, and from the sentence imposed on 25 January 2016.
I. OVERVIEW
Introduction
[2] The appellants were convicted of seven counts after a fourteen day trial in the Ontario Court of Justice.
[3] The counts were contained in three separate informations prosecuted by both the Ministry of Labour (“MOL”) and the Ministry of the Environment (“MOE”).
[4] Two informations were laid by the MOE, both of which alleged breaches of the Environmental Protection Act, R.S.S. 1990, c E.19 (“EPA”). The appellants were charged with discharging contaminants into the environment following an explosion at their site, contrary to s. 14 of the EPA. The second EPA information alleged non-compliance with a series of Orders issued after the explosion had occurred contrary s. 186(2) of the EPA.
[5] The third information laid by the MOL alleged the appellants’ failure, as an employer, to provide information, instruction and supervision to a worker or to protect his or her safety at their workplace, contrary to s. 25(2)(a) of the Occupational Health and Safety Act, R.S.O. 1990, c.0.1 (“OHSA”) and failure to take reasonable precautions for the protection of a worker at their workplace, contrary to s. 25(2)(h) of the OHSA.
[6] As a result of being found guilty, the trial judge imposed a number of substantial fines against both the corporation and its individual directors.
[7] The appellants argue that the judge made a series of errors in arriving at the guilty verdict and invite this court to enter acquittals on each count, or, in the alternative, order a new trial.
[8] If the convictions are upheld, they argue that the sentence imposed by the judge was manifestly unfit and should be substantially reduced.
[9] For the reasons set out below, I reject the appellant’s submissions and dismiss both the conviction and sentence appeals.
Factual Background
The Ministry of the Environment Prosecution
[10] The appellants, Sunrise Propane, operated a propane facility located at 54 Murray Road in Toronto. The corporate directors were Shay Ben-Moshe and Valery Belahov. This facility was by licensed by the Technical Standards and Safety Authority (“TSSA”) as a Propane Refill Centre to transfer propane to commercial customers.
[11] On 10 August 2008, a series of explosions rocked the location resulting in the death of an employee and major structural damage to surrounding buildings. Residents within a 1.6 kilometres radius of the explosion were evacuated and a major clean-up of the area became necessary. This included the removal of fallen asbestos debris.
[12] At trial, the Crown tendered an expert opinion from the Office of the Fire Marshall (“OFM”) identifying the cause of the explosions as emanating from a truck-to-truck transfer of propane conducted on the premises by Felipe Deleon, a driver employed by the appellants. The OFM concluded that a propane leak had caused the explosions and concluded it had occurred in one of two ways.
[13] The first possibility was a leak in the hose transferring propane from two tanks, on site, holding propane. The larger tank housed at the facility, named Unit 861, stored the propane. The smaller tank, Unit 1, was the tank to which the propane was being transferred.
[14] The alternative cause of the explosion was a leak in the bypass system of the pump affixed to Unit 861 used by Mr. DeLeon to transfer the propane. At trial, this conclusion was not disputed by the appellants.
[15] The Crown also tendered evidence that as a result of the damage, the appellants became subject to an Order made pursuant to the EPA. This Order required the appellants to take action to clean up the damage caused by the explosion so that residents could return to their homes.
The Ministry of Labour Prosecution
[16] The MOL prosecution alleged that there had been a failure to provide sufficient instruction and/or supervision on safe work practices to Parminder Saini, the employee who died on scene. A second charge alleged that the appellants had failed to take reasonable precautions to ensure that the propane facility had been installed in accordance with regulations. This charge concerned the movement of two 2000 USWG tanks on the facility in an unsafe manner.
[17] The trial judge convicted the appellants on all counts except one relating to the failure to comply with the EPA orders.
[18] The appellants appeal the convictions citing numerous legal and factual errors committed by the trial judge.
INSUFFICIENT REASONS
[19] As a preliminary point, I deal with Mr. Adler’s argument that the appeal must be allowed on the basis that the trial judge failed to furnish sufficient reasons when convicting the appellants.
[20] Since R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, the law is clear that in delivering a verdict, a trial judge is under an obligation to explain to the losing party why it lost and afford the basis for meaningful appellate review of his or her decision.
[21] A judge need not review every piece of evidence or explain in each step of the reasoning process so long as the findings linking the evidence to the verdict can be logically understood: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20; R. v. Campbell, 2017 ONCA 209, [2017] O.J. No. 1371, at para. 15.
[22] The judge’s reasons must be read as a whole and in conjunction with the evidence, issues, and submissions at trial, together with an appreciation of the purposes or functions for which they are delivered: R. v. Villaroman, 2016 SCC 33, 338 C.C.C. (3d) 1, at para. 15; R.E.M., at para. 16. The central question is whether the reasons, read in context, show why the trial judge decided the way he or she did: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 15.
[23] In this case, the judge gave a comprehensive review of the evidence relevant to the charges and her finding of guilt. The judge addressed both parties’ arguments, and gave her reasons for accepting or rejecting their positions. I find no instance where the trial judge’s reasons would fail the test set out in the jurisprudence.
[24] For these reasons, this ground of appeal fails.
THE STANDARD OF APPELLATE REVIEW
[25] There is little dispute as to the legal principles surrounding the power of appellate review of a trial decision with respect to offences committed under the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”).
[26] Section 120 of the POA provides that:
120 (1) On the hearing of an appeal against a conviction or against a finding as to the ability, because of mental disorder, to conduct a defence, the court by order,
(a) may allow the appeal where it is of the opinion that,
(i) the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground, there was a miscarriage of justice; or
(b) may dismiss the appeal where,
(i) the court is of the opinion that the appellant, although the appellant was not properly convicted on a count or part of an information, was properly convicted on another count or part of the information,
(ii) the appeal is not decided in favour of the appellant on any ground mentioned in clause (a), or
(iii) although the court is of the opinion that on any ground mentioned in subclause (a) (ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.
[27] Questions of law are decided on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
[28] However, a trial judge’s findings of fact cannot be reversed unless the appellate court finds that the judge made a “palpable and overriding error”: Housen, at para. 10; Stein v. The Ship “Kathy K”, 1975 CanLII 146 (SCC), [1976] 2 S.C.R. 802, at p. 808; Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298, at para. 42; Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, at para. 57.
[29] In Housen, the Supreme Court of Canada identified the difficulties in dealing with questions of “mixed” fact and law. Accepting that these matters fell along a spectrum, the Court found that appellate review requires scrutiny of the error to determine whether the finding made by a trial judge could be characterised as a failure to consider the appropriate legal test. If that was the case, the error was properly characterised as an error of law and subject to the correctness standard. On the other hand, if the legal principle was not “readily extricable,” a more stringent standard was required. If the issue was decided on a judge’s interpretation of the evidence as a whole, it could only be reversed on a finding of “palpable and overriding error”: Housen, at para. 36.
[30] Mr. Adler, on behalf of the appellants, bases this appeal on a number of “key factual and legal errors” made by the judge. In dealing with his submissions on the factual errors, I emphasise the court’s directions in Housen, at para. 23:
We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts. As we discuss below, it is our respectful view that our colleague’s finding that the trial judge erred by imputing knowledge of the hazard to the municipality in this case is an example of this type of impermissible interference with the factual inference drawn by the trial judge.
II. THE MINISTRY OF THE ENVIRONMENT PROSECUTION
A. SECTION 14 OF THE ENVIRONMENTAL PROTECTION ACT
FACTUAL BACKGROUND AND OVERVIEW
Factual Background
[31] The appellants held a TSSA licence to operate a Propane Refill Centre at 54 Murray Street in Toronto. Shay Ben-Moshe was president of the Sunrise Corporation and Valery Belahov was secretary, treasurer and director.
[32] On 10 August 2008, the Sunrise Propane facility at 54 Murray Street was manned by a single employee, Parminder Saini. In the early morning hours, a truck driver employed by the appellants, Felipe DeLeon, entered the facility to transfer propane from a large propane tanker, Unit 861, to a smaller tanker, Unit 1, both of which belonged to the appellants.
[33] As he completed the transfer, Mr. DeLeon observed a cloud of smoke approximately 20 yards from where he was standing. Curious, he walked over to speak to Mr. Saini. As the two conversed, Mr. DeLeon realised that the smoke was actually propane and heard a small explosion nearby. He ran towards the southern end of the property and climbed over a number of propane cylinders to escape.
[34] Mr. Saini, however, ran towards the cloud and died as it detonated. The resulting explosion caused stored tanks of propane to ignite.
[35] A second explosion occurred at Unit 1, the tank that Mr. DeLeon had filled with propane, and set off further explosions as the heat spread to various tanks of propane stationed at the facility.
[36] The explosions released numerous contaminants into the environment including heat, gas vapour, asbestos, dust, metal and other forms of discarded matter. The discharge forced residents in the surrounding areas to leave their homes. The explosions caused major structural damage to homes and buildings and inflicted personal injuries. As noted, Mr. Saini, tragically lost his life during these events.
[37] Jamie Bennett, a fire protection investigation engineer employed by the OFM, testified that he come to the conclusion that the explosions were the result of a propane leak that occurred during the truck to truck transfer initiated by Mr. DeLeon. The leak originated from the Unit 861, and, after the first explosion, it continued heating Unit 1 to the point of causing an additional detonation.
[38] The source of the leak from Unit 861 was traced to two possible sources: the hose transferring propane from Unit 861 to Unit 1 or a leak in the bypass system of the pump mounted on Unit 861 which pumped the propane between the two tankers.
[39] Although the hose was sent to the Centre of Forensic Sciences for examination, the extent of damage meant that no specific findings were possible. Similarly, the pump by-pass system was unavailable for examination because the component was never recovered after the blast.
[40] At trial, however, the appellants did not dispute Mr. Bennett’s findings.
The Officially Induced Error
[41] The trial judge acceded to the appellants’ arguments that statements made by Donald Heyworth, a TSSA inspector, led to the existence of an “officially induced error.” Mr. Adler submits that having made this finding, the trial judge was obliged to acquit the appellants. He argues that the failure to do so reveals a fatal flaw in the judge’s reasoning.
[42] In order to understand this argument, it is necessary to briefly review the evidence and findings of the trial judge on this issue.
[43] Well before the events of 10 August 2008, the TSSA had decided to restrict the practice of truck to truck transfers because of safety concerns. Accordingly, on 31 October 2006, the TSSA issued a Director’s Order which expressly prohibited truck to truck transfers on any facilities other than those licensed as “bulk plants.” Donald Heyworth, a TSSA inspector who knew the appellants from prior dealings, attended the Sunrise Propane site to ensure compliance with the Order by the end of November. Mr. Heyworth met with Mr. Ben-Moshe and advised him of the contents of the Order.
[44] A further meeting was held with Mr. Ben-Moshe, John Ross Keys, an independent engineer hired by the appellants, Robert McCullough, who was involved in the installation and repair of propane equipment, and Gary Mizlitsky, who ran a separate company Discount Propane, out of the Murray Road site, to review drawings of a proposed 30,000 USWG tank that the appellants intended to site at 54 Murray Road.
[45] These meetings proved to be a source of controversy at trial. Mr. Heyworth indicated that when the issue of truck to truck transfers arose, he told the appellants that the practice could no longer continue at their site. However, Mr. Heyworth recalled that as he was leaving a meeting which had discussed drawings of a new tank, someone asked him, “Can we continue operating?” He replied, “Yes.” At trial, he testified that he meant the appellants could continue transferring propane from their cargo liners to stationary tanks and then fill cylinders from those tanks.
[46] Mr. Keys and Mr. McCullough both stated that they took Mr. Heyworth’s response to mean that the appellants were permitted to carry out their business in the same manner as they had done prior to the Director’s Order.
[47] The trial judge found that Mr. Heyworth - either expressly or impliedly - erroneously told the appellants that truck to truck transfers could be conducted on their site even though they had been prohibited by the Order. Reviewing the jurisprudence, and applying the test found in Lévis (City) v. Tetretault, [2006] 1 S.C.R. 240, and R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, the judge found that the appellants could rely on the defence of officially induced error.
[48] However, the judge found that the defence was only available until the TSSA issued a Code Adoption Document (“CAD”) which explicitly spelt out the prohibition on truck to truck transfers unless the facility was a bulk plant. The CAD was posted on the TSSA website on 14 June 2007.
The Trial Judge’s Reasons
[49] The judge found the actus reus of the offence had been proven by the Crown beyond a reasonable doubt. In doing so, she relied upon the Agreed Statement of Facts filed by the parties. The judge accordingly turned to the question of mens rea and found that the appellants had failed to establish, on a balance of probabilities, that they were duly diligent.
[50] She determined that it was reasonably foreseeable that a propane leak would result in an explosion and that the appellants failed to take reasonable steps to prevent the discharge of contaminants that followed. The judge’s decision was based on four factors:
• The truck to truck transfers
• The failure to install the 30000 USWG tank
• The failure to provide proper oversight to their truck drivers
• The failure of preventative maintenance equipment and the lack of a general atmosphere of safety
[51] The appellants argue that all four bases of the judge’s reasons are riddled with errors and internal inconsistencies. As a result, they submit that the appeal must be allowed.
LEGAL PRINCIPLES
Strict Liability Offences
[52] In R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 the Supreme Court of Canada explained that in strict liability cases the prosecution is absolved from the obligation of having to prove mens rea once they have established the actus reus of the offence beyond a reasonable doubt. The rationale was explained by Dickson J., at p. 1325, in the following way:
The correct approach, in my opinion, is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries and to the virtual impossibility in most regulatory cases of proving wrongful intention. In a normal case, the accused alone will have knowledge of what he has done to avoid the breach and it is not improper to expect him to come forward with the evidence of due diligence. This is particularly so when it is alleged, for example, that pollution was caused by the activities of a large and complex corporation. Equally, there is nothing wrong with rejecting absolute liability and admitting the defence of reasonable care.
In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.
Section 14 of the EPA
[53] The section of the EPA with which the appellants were charged reads as follows:
14 (1) Subject to subsection (2) but despite any other provision of this Act or the regulations, a person shall not discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment, if the discharge causes or may cause an adverse effect.
[54] There is no dispute between the parties that the offences under appeal, as public welfare offences, fall within the strict liability category. As noted, in Sault Ste. Marie, the Supreme Court of Canada found that strict liability cases place an onus on the Crown to prove the actus reus of the offence beyond a reasonable doubt. Once it has done so, the onus shifts to the defence to establish any available defence on a balance of probabilities. The application of strict liability means the Crown need not disprove defences or acts of negligence: the defence must show that they had taken all reasonable steps to avoid the commission of the offence.
THE APPEAL AGAINST CONVICTION
The Grounds of Appeal
[55] The appellants raise the following grounds of appeal with respect to conviction:
• The trial judge erred in the manner in which she found that the actus reus had been proven
• The trial judge erred in dismissing the defence of officially induced error
• Alternatively, the trial judge erred in finding that facility was not a bulk plant and was therefore entitled to an exemption from the Director’s Orders
• The trial judge erred in her approach to whether the appellants had been duly diligent
• The trial judge failed to apply the correct principles of foreseeability
Proof of the Actus Reus
[56] The appellants submit that the trial judge erred in finding that management and control of the facility established the actus reus of the offence. They take the position that the trial judge had to find the following:
(i) proof of the cause of the explosion;
(ii) the cause was foreseeable;
(iii) the appellants failed to take reasonable steps with respect to the cause and;
(iv) their failure to take reasonable steps led to the explosion.
[57] I disagree with this position as it conflates the mens rea and actus reus components of the offence. The actus reus defined in s. 14 of the EPA is the discharge of a contaminant into the environment which caused or may cause an adverse effect. The term "adverse effect" is defined in section 1 (1) of the EPA. There was no dispute that contaminants were discharged into the environment and that they caused or could cause an adverse effect.
[58] The only issue was whether the appellants were responsible. In Sault Ste. Marie, the actus reus of an offence of prohibiting the discharge or causing the discharge of polluted elements was defined, at p. 1329, in the following manner:
It may be helpful, however, to consider in a general way the principles to be applied in determining whether a person or municipality has committed the actus reus of discharging, causing, or permitting pollution within the terms of s. 32(1), in particular in connection with pollution from garbage disposal. The prohibited act would, in my opinion, be committed by those who undertake the collection and disposal of garbage, who are in a position to exercise continued control of this activity and prevent the pollution from occurring, but fail to do so. The “discharging” aspect of the offence centres on direct acts of pollution. The “causing” aspect centres on the defendant’s active undertaking of something which it is in a position to control and which results in pollution. The “permitting” aspect of the offence centres on the defendant’s passive lack of interference or, in other words, its failure to prevent an occurrence which it ought to have foreseen. The close interweaving of the meanings of these terms emphasizes again that s. 32(1) deals with only one generic offence.
[59] See also: R. v. Nitrochem Inc., [1993] O.J. No. 3336 (O.C.J), at paras. 20-22; R. v. Lopes, [1996] O.J. No. 96 (O.C.J), at para 15.
[60] In light of these comments, the trial judge correctly concluded that the actus reus had been proven. The explosions occurred at a facility controlled by the appellants and staffed by their employees. The transfer of propane which led to the explosions was carried out by a driver employed by the appellants. It is hard to understand how the judge could come to any other conclusion, given that all of these facts were conceded in the Agreed of Statement of Facts.
The Officially Induced Error
[61] As described previously, even though the trial judge found that truck to truck transfers were prohibited at the appellant's facility, she agreed that Mr. Heyworth’s utterances at the 2007 meetings induced the appellants into the erroneous belief that they were permissible. However, the judge placed a caveat on her finding: the defence expired when the TSSA published its new Code Adoption Document (“CAD”) in June 2007.
[62] The appellants submit that this limitation was wrong. They argue that the effect of the error extended to the date of the explosions and that June 2007 was an “artificial deadline." They further argue that any TSSA inspector had the power to revoke existing Director’s Orders even though, at trial, Mr. Heyworth denied any such authority. The appellants argue that Mr. Heyworth’s utterances caused the appellants to believe that the Order had been revoked insofar as it applied to their business.
[63] A proper disposition of this issue requires that it be placed in context. The appellants were not charged with breaching a regulatory practice in conducting truck to truck transfers. The issue of the transfers is significant when assessing due diligence. If the appellants were expressly prohibited from pursuing this practice but continued to do so, any defence of due diligence must fail.
[64] The appellant's position must be rejected. It is clear that the judge did not find that Mr. Heyworth gave the appellants permission to conduct truck to truck transfers at their facility: he had no power to do so in the face of the pre-existing Director’s Public Safety Order of 27 October 2006. The judge found only that the appellants were led to mistakenly believe they could continue operating as they had previously. This fed their erroneous belief that truck-to-truck transfers could continue on their site.
[65] When the CAD came out in June 2007, however, any misconception held by the appellant should have evaporated. This was not an "artificial deadline" but a sanitising event which unequivocally informed the appellants that, regardless of Mr. Heyworth’s utterances, the practice of truck-to-truck transfers was forbidden at their facility. I find nothing improper or unreasonable about the judge’s finding on this point.
[66] Once the issue had been clarified, it was incumbent upon the appellants to end the practice or seek approval for an exemption. There is no evidence that they did either of these things, or that they sought legal advice on the issue.
[67] Mr. Adler submits that the purpose of the letter written by John Ross Keys in October 2007 (but misdated 9 July 2007) was to confirm the continuing validity of the ”exemption" granted by Mr. Heyworth. I disagree with this characterisation. The correspondence was a self-styled "Letter of Declaration" confirming that a proposed new 30,000 USWG tank had been reviewed by Mr. Keys and was in compliance with the Code. There was no attempt to obtain an exemption or seek clarification of the position set out in the CAD. The sentence relied upon by Mr. Adler - “[t]he facility will remain in operation as a filling plant c/w a cylinder filling trailer, cylinder storage, auto propane dispensing and bulk truck loading” - does not constitute permission or confirmation of an exemption.
[68] For the above reasons, I reject the appellants’ argument that the trial judge erred in her assessment of due diligence in the context of officially induced error.
Was the Facility a Bulk Plant?
[69] The appellants submit that the judge erred in failing to find 54 Murray Road to be a "bulk plant” - a definition which would entitle them to claim the exemption contained in the Order of 27 October 2006 and would have allowed the practice of truck to truck transfers at the time of the incident.
[70] Mr. Adler refers to evidence given at trial in which Mr. Heyworth acknowledged, in cross-examination, that the 54 Murray Road facility was a "bulk plant." He argues that the trial judge ignored this evidence when arriving at the verdict.
[71] Whilst Mr. Adler is correct about Mr. Heyworth’s description, there was additional evidence before the judge that the terms “bulk plant” and “refill centre” were frequently used interchangeably in the industry. The Propane Stories and Handling Code (PSHC) defines a bulk plant in the following way:
The facility, the primary purpose of which is the distribution of propane. Such plants have bulk storage and usually have container filling and vehicle transfer facilities on the premises. Bulk plants are considered part of this category.
[72] On the other hand, the PSHC defines a “container refill centre” as an "area including a building, wherein propane is dispensed into containers, and wherein propane storage containers, piping, and pertinent equipment, including dispensing devices, can be located."
[73] Despite the terminology, the determinative answer to whether the 54 Murray Road site was a “bulk plant” can be found from the licence it held. In this case, as Mr. Adamson, for the respondent points out, the evidence showed the facility to be licensed only as a Container Refill Centre or Filling Plant Facility. Thus, even though the facility was carrying out the operations of a bulk plant, it had no legal authority to do so: truck to truck transfers should not have been taking place at the site.
[74] Moreover, even if 54 Murray Road had been licensed as a bulk plant, that, by itself, would not be enough: there were additional conditions set out in the Director’s Order. TSSA pre-approval of truck to truck transfers was required even at a bulk plant. Approval was contingent upon the satisfaction of a number of requirements listed in the Order.
[75] 54 Murray Road had not been pre-approved by the TSSA and failed to meet one of the requirements: it was lacking a "permanent license storage capacity at least equal to the largest tank truck or have the capacity of truck to truck transfer specifically approved by the TSSA”.
[76] I find the trial judge committed no error on this issue. Nor can it be argued, as Mr. Adler seeks to, that there was no evidence before the court that performing a truck to truck transfer was dangerous. Mr. Heyworth, Mr. Keys, Michael Martin, and Robert McCullough all testified about safety features present on TSSA approved bulk plants which could have prevented the events of 10 August 2008.
[77] I would add that the appellant’s lack of legal authority to conduct truck to truck transfers at 54 Murray Road would, of itself, be sufficient to found a conviction under s. 14 of the EPA.
[78] This ground of appeal is accordingly dismissed.
Did the Trial Judge Err in Assessing Due Diligence and Foreseeability?
[79] The judge found that the appellants’ system for overseeing safety was severely lacking. First, she found that the appellants’ had failed to provide the requisite oversight of the truck drivers. Second, she concluded that there was an inadequate system of preventative maintenance and third, she found that even though the appellant had advanced the notion that there was a general atmosphere of safety, due diligence required more than simply responding to an inspector's orders after the fact.
[80] In R. v. Canadian Tire Corp., 2004 CanLII 4462 (ON SC), [2004] O.J. No. 3129 (S.C.J.), at para. 87, Hill J. remarked that the standard of diligence required to prevent an accident from occurring depends on the magnitude of the harm that could be caused.
[81] In Sault Ste. Marie, at p. 1331, the court indicated that due diligence depended upon “whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system."
[82] Subsequent jurisprudence demonstrates that the test would be satisfied if a particular defendant could point to the existence of a system of preventative measures to guard against the offences that occurred. In Canadian Tire Corp., the court upheld the trial judge's conviction because the defendants failed to show that they had established a system of random audits to prevent the illegal importation of bar refrigerators containing a prohibited substance. In R. v. Island Industrial Chrome Co., 2002 BCPC 97, [2002] B.C.J. No. 630, the court similarly rejected the defence of due diligence due to the defendants’ failure to establish a system to prevent a discharge of toxic chromium from an overflow tank into a creek and river.
[83] I see no reason to interfere with the trial judge's findings with respect to the safety issues. She was entitled to scrutinise the evidence relating to safety procedures, spot-checks, and specific training with respect to truck-to-truck transfers. I agree with the trial judge’s findings that the appellant's business was an inherently dangerous one. The appellants were required to ensure that they operated in the safest conditions to avoid potential catastrophes.
[84] The judge’s findings with respect to preventative maintenance were well within the evidentiary framework presented at trial. She rejected Mr. McCullough's evidence that his system was sufficiently detailed to ensure that the site was being operated safely. The concerns over his reliability were justified given the absence of any written notes of his yearly inspection and his inability to provide an invoice for the work done.
[85] The judge was also entitled to take account of Mr. McCullough’s inaction when he noticed a potentially damaged hose in the yard. Even though the judge made factual errors in her analysis on this point - for example her finding that there was no evidence that the hose on Unit 861 was brand-new when Mr. de Leon said that he observed the hose to be new - those errors were of a minor nature. Looked at as a whole, the judge's findings with respect to a lack of due diligence in ensuring a proper system of maintenance were more than reasonable.
[86] The issue in this case was whether it was foreseeable that a propane leak could occur during truck to truck transfers. I agree with the respondent that the evidence at trial demonstrated that it was. The purpose of the regulatory system was to put in place, at multiple levels, procedures that would prevent leaks from occurring, and to ensure that if leaks did occur they could be controlled. For example, Martin testified as to the importance of training personnel in handling propane and detecting and dealing with leaks if found. Moreover, there was evidence from the invoices provided by Mr. McCullough that leaks had previously occurred at the facility. The trial judge recognised this in her analysis of foreseeability and made no error.
[87] For the above reasons, the s. 14 of the EPA conviction appeal is dismissed.
B. THE BREACH OF THE PROVINCIAL OFFICER’S ORDER
Factual Background
[88] In the aftermath of the explosion and its destructive effects, Marianne White, an Environmental Protection Officer, issued a Provincial Officer’s Order requiring the appellants to clean up the residential area around 54 Murray Road and develop a plan to clean up the site. The work requirements are summarised as follows:
Provide written confirmation that the company was willing to comply with the requirements of the Order to be complied with by 5 p.m. on 13 August 2008;
Provide notification if for whatever reason the company cannot or was unwilling to comply with the Order verbally and in writing with a compliance date of within 12 hours of August 13, 2008.
Retain the services of one or more qualified persons to carry out the work required by the Order to be complied with by 5 p.m. on 13 August 2008;
Provide written verification that one or more qualified persons had been hired to carry out the work required by the order to be complied with by 5 p.m. on 13 August 2008;
Taking reasonable steps to cleanup of the residential area around 54 Murray Rd., effective immediately;
Develop and submit a Residential Clean-Up Plan to be complied by 5 p.m. on 13 August 2008;
Provide written copies of the sampling results to the provincial officer and Dr. Shapiro of the Toronto Public Health effective immediately, and
Develop cleanup plan for 54 Murray Rd. within 24 hours of the Ontario Fire Marshall releasing the site.
[89] Items 1, 2, 4, 5, and 6 formed the bases for the charges laid against the appellants. The trial judge found the appellants had breached the Order by failing to comply with items 1, 4, 5, and 6 but had been duly diligent in seeking to comply with item 2, acquitting them of that charge.
[90] The appellants raise a number of grounds dealing with the trial judge’s findings, most of which simply re-argue the facts of the case. I deal with these briefly.
Did the Trial Judge Fail to take Account of the Appellants Financial Difficulties?
[91] The appellants argue that in coming to her decision, the trial judge ignored the personal fiscal problems and insurance difficulties which made the orders impossible to comply with. For the following reasons, I reject that argument.
[92] There was no admissible evidence of either the personal fiscal problems of the owners or any insurance difficulties. Similarly, there was no evidence that the appellants’ finances were so impaired that they could not comply with the Order. Any evidence purporting to support this fact, namely Mr. Warren’s evidence, was ruled inadmissible hearsay by the trial judge and there is no reason interfere with this finding. In contrast, the judge found, as she was entitled to, that the bank records disclosed a considerable amount of financial resources in the appellants’ hands.
Was the Order Incomprehensible?
[93] The appellants argue that the Order was “confusing,” “contradictory,” and “incomprehensible” making compliance impossible. I disagree: there was no direct evidence pertaining to what the appellants’ directors did or did not understand.
[94] The appellants’ reliance on the email sent by their counsel, Mr. Warren, to Ms. White, informing her that he had been retained because the appellants “don’t understand” the nature of the Order was clearly inadmissible hearsay. Moreover, there was evidence that Ms. White held a meeting with Mr. Belahov to explain the requirements of a draft Order which was substantially the same as the finalised version. Again, there was no admissible evidence before the trial judge that Mr. Belahov did not understand the content of the conversation or the requirements of the Order.
Did the Judge Misapply the Law on Jurisdiction?
[95] The appellants agree with the trial judge’s ruling that the trial court “lacked jurisdiction to attack the merits of an administrative order where the legislature has established a separate administrative appeal process for that purpose.” In coming to that conclusion, the judge was bound by the Supreme Court of Canada’s decision in R. v. Consolidated Maybrun Mines Ltd., [1983] 1 S.C.R. 706.
[96] However, the appellants seek to distinguish this case on the basis that the Order was based on two separate sections of the EPA - ss. 157(1) and 157.1(1) - and accordingly was improper and lacking legal authority. If that proved to be the case, the appellants submit that the trial judge had jurisdiction to determine whether the Order constituted an abuse of process.
[97] The appellants provide no legal authority to support this argument. Moreover, I find no limit on the authority of the Director to hear appeals of Orders based on different sections of the EPA - a proposition that forms the foundation of the appellants’ arguments.
[98] By contrast, it appears clear that even if Ms. White lacked jurisdiction to make the Order, that fact was irrelevant with respect to the trial court’s ability to determine the merits of the Order: Consolidated Maybrun, at para. 62. See also: R. v. Eastview Sand and Gravel, [2001] O.J. No. 5692 (S.C.J.), at paras. 7-8.
[99] Finally, Mr. Adler’s submission that the trial judge failed to take into account that English was not Mr. Belahov’s first language, is not borne out by the evidence. I repeat my observation that there was no evidence of a lack of understanding of what was required. More tellingly, Mr. Belahov’s own counsel, Mr. Warren, testified that he had advised the appellants of the law and procedure with respect to the appeal process under the EPA.
[100] The trial judge found the Order to be valid and the appellants have provided no basis disturb those findings.
Could the Appellants Rely on Legal Advice as a Defence?
[101] Mr. Adler further argues that in dealing with the Order, the appellants sought legal advice from “an acknowledged legal expert” in the law when they retained Mr. Warren. His advice, as explained at trial, was that on a strict interpretation of the Order, the appellants could not comply with it. Even if this advice was wrong, submits Mr. Adler, the appellants’ decision was a good faith error which affords them a defence. As support for this proposition, Mr. Adler relies on R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565; and R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241.
[102] I reject this argument for the following reasons.
[103] First, the trial judge found, as she was entitled to, that the legal advice given by Mr. Warren was based on the appellants’ own information regarding insurance funds and finances. Mr. Warren failed to verify the substance of what he was told - inadmissible hearsay evidence at trial - through a review of the appellants’ financial documents. As noted, the judge found the bank records actually showed that the appellants did have the financial wherewithal to comply with the Order.
[104] Secondly, the authorities cited by Mr. Adler do not stand for the principle that reliance on legal advice, erroneous or not, constitutes a defence in law.
[105] In Campbell, the Supreme Court of Canada found that police officers carrying out a “reverse sting” by offering to sell narcotics to suspected drug traffickers violated the Narcotic Control Act despite the fact that the officers had sought prior advice from the Department of Justice to determine whether the operation was lawful. The case concerned whether the legal advice should be disclosed in the course of an application for a stay of proceedings after conviction. In contrast to Mr. Adler’s submissions, the Court found that legal advice was not a defence or justification for conduct falling beyond the ambit of the law.
[106] Similarly, in Jones, the Court of Appeal for Ontario found that evidence obtained in breach of an accused’s s. 8 Charter rights should not be excluded under s. 24(2) because the police had relied in good faith on incorrect legal advice from a Crown Attorney. This is a far cry from any legal principle that permits erroneous legal advice to act as a defence to the commission of an offence.
[107] Finally, the judge considered this issue and the surrounding jurisprudence before deciding the issue. In my view, that decision was correct: R. v. Molis, 1980 CanLII 8 (SCC), [1980] 2 S.C.R. 356, [1980] S.C.J. No. 75, at p. 7; R. v. Kotch, 1990 ABCA 348, 114 A.R. 11, at para. 17; R. v. Pea (2008), 2008 CanLII 89824 (ON CA), 93 O.R. (3d) 67 (C.A.), at para. 17; R. v. Pontes, 1995 CanLII 61 (SCC), [1995] 3 S.C.R. 44, at paras. 33-34; R. v. Stucky, 2009 ONCA 151, [2009] O.J. No. 600, at paras. 104-118; and R. v. Eizenga, 2011 ONCA 113, [2011] O.J. No. 524, at para. 79.
Were Items 1 and 2 Alternative Directions?
[108] The trial judge found as a fact that the appellants had failed to provide written confirmation that they were willing to comply with the order by 13 August 2008 at 5 pm, rejecting the appellants’ argument that it was impossible to do so because of the stipulated timelines. It is clear that these facts were proven by the Crown at trial. Mr. Adler repeats the same argument on appeal. The judge’s findings that the obligations were continuing - a fact confirmed by the appellants’ own counsel - are a complete answer to this argument. I find that the factual findings made by the judge in respect of items 4, 5 and 6 that the appellants failed to clean up are unassailable and dispose of the grounds of appeal with respect to counts 3-5 of Information #3.
[109] The appellants make a further argument with respect to the impact of judge’s acquittal on Count 2 of Information #3. Mr. Adler argues that once the judge found that the appellants had been duly diligent in attempting to notify the MOE that it was unwilling to comply with Order, it would be impossible for it to comply with the rest of the items. In other words, the appellants could not provide written notice that it would both comply and not comply with the Order.
[110] This legal issue appears to be one in which the parties diverge in interpretation. The appellants ask this court to read items 1 and 2 in the alternative: if item 2 was complied with, the rest of the Order became irrelevant because of the appellants’ stated intention not to comply. The respondent, however, argues that the two items are distinct steps: item 1 directed written notice to comply with the Order whereas item 2 required notice after that time period if other reasons forced a change of intention.
[111] There is no doubt that the Order could have been written with more clarity. However, I agree with the respondent that items 1 and 2 were not alternative options subject to choice. Item 1 was a clear direction that the MOE needed the appellants to acknowledge a willingness to comply with the Order by 5 p.m. on 13 August 2008. Items 4, 5 and 6 were adjuncts to that requirement. Item 2, however, was a discrete condition in the event that something occurred which prevented or made the appellants no longer willing to comply with the Order. It would make no sense that Item 2 could be a method by which the appellants could foreclose the Order by simply indicating that they were unwilling to comply.
[112] Nor can it be argued that the judge’s finding that the appellants were duly diligent with respect to item 2 change the result on item 1, as Mr. Adler submits.
[113] The evidence was that Mr. Warren, the appellants’ counsel verbally notified the MOE with the information required by item 2 of the order. However, there was no evidence of any attempt to fulfil item 1. This accords with Mr. Warren’s testimony that his clients were not in a financial position to comply with item 1 of the Order, as he himself testified, when cross-examined about the failure to comply. His response was that “the order required the client provide confirmation that it was able and willing to comply. That confirmation could not be provided orally, or in writing.” In other words, the judge’s finding that the appellants were duly diligent with respect to item 2 cannot be used to avoid liability on item 1 of the Order.
[114] For these reasons, the appeal with respect to the breaches of the Order is dismissed.
III. THE MINISTRY OF LABOUR PROSECUTION
I. DID THE JUDGE ERR IN FINDING A FAILURE TO PROVIDE INSTRUCTION AND SUPERVISION?
Factual Background
[115] At trial, the respondent alleged that the appellants had failed to provide the appropriate information, instruction, and supervision to Parminder Saini on “safe work practices and recognition of hazards associated with propane storage, dispensing and handling and on appropriate emergency response to propane leaks.” Mr. Saini had been hired approximately four to five months prior to the August 2008 explosion.
[116] The trial judge determined Count 1 to be a strict liability offence and found the actus reus to be proven by the appellants’ failure to provide information, instruction and supervision to Mr. Saini.
[117] The judge also found that Mr. Saini was effectively in charge of the yard, a position prohibited by his lack of education, experience and training. The judge rejected the appellants’ defence of due diligence, finding that the explosions were a foreseeable event given that an untrained employee had been left in charge. The trial judge accordingly found a failure of due diligence with respect to the instruction and training given to Mr. Saini and convicted the appellants of Count 1.
The Conviction Appeal
[118] Mr. Adler advances a number of grounds in arguing that the conviction should be quashed. First, he submits that the trial judge reversed the burden of proof. Secondly, he asserts the trial judge wrongly focused on the “training” received by Mr. Saini rather than information, instruction and supervision. Thirdly, he submits that key factual errors can be found in the trial judge’s reasons and that relevant, exonerating evidence was ignored.
[119] For the following reasons, I reject these submissions.
[120] In my view, the judge did not reverse the burden of proof when convicting. There is no dispute that OHSA charges are presumptively strict liability: R. v. Timminco Ltd (2001), 2001 CanLII 3494 (ON CA), 153 C.C.C. (3d) 521 (Ont. C.A.), at para. 23. As noted previously, the Supreme Court of Canada, in Sault Ste. Marie, held that in strict liability offences, the Crown is legally obliged to prove the actus reus of the offence beyond a reasonable doubt. Once it has done so, the onus shifts to the defence to establish any available defence on a balance of probabilities. The trial judge acknowledged these principles when deciding the case.
[121] I disagree with Mr. Adler's submission that the judge confused the concepts of due diligence and actus reus when quoting a passage from Libman on Regulatory Offensives in Canada. The reference to Libman was simply a further comment that the Crown was not required to disprove due diligence in proving the actus reus of the offence.
[122] Moreover, Mr. Adler's submission that the trial judge appeared to reverse the principles that she had previously set out in her judgement does not hold up on review. The judge wrote that "the Crown does not have to prove a negative by showing that the deceased was not provided with information instructional supervision regarding propane by anyone.” Mr. Adler omits the underlined words in his argument even though they inform the observation. The judge’s point was that the Crown did not have to prove that Mr. Saini received no training whatsoever but that the appellants did not provide him with training. Indeed, the next line in the judgement makes it very clear that the charge is levelled at the appellants’ failure to provide "information, instruction and supervision."
[123] I also reject the submission that the judge reviewed the evidence solely in the context of due diligence. It was clear that the actus reus had been proven based on the following evidence:
The evidence of Brent McIntyre whose job involved training the employees in propane handling and sending completed examinations to the Ontario Propane Association. The judge found that he did not train Mr. Saini.
The evidence of Michael Martin who testified that he taught the Propane Plant Operator 3 (PPO3) course at the 54 Murray Road facility but did not train Mr. Saini. When asked at trial, Mr. Martin testified that he did not recognize Mr. Saini’s name and was told by the Ontario Propane Association there was no record of him having been trained.
Martina Collingridge, the person charged with maintaining a database holding the names of people who had received training testified that she could find no record showing that Mr. Saini had been trained.
The evidence of Mr. Saini’s reaction, i.e. running towards explosion even when told not to by Mr. De Leon. The judge found this to be indicative of a lack of training or being given appropriate instruction. I agree with Mr. Adler that this piece of evidence, on its own, would not be determinative. However, together with the factors set out above, the trial judge was entitled to conclude that there had been an absence or lack of training.
[124] The judge rejected Mr. Ben-Moshe’s evidence of training as being unreliable: that was her call to make. This finding, along with the conclusion that Mr. Saini, the sole employee on site other than the drivers, was effectively in charge of the yard on August 2008, is entitled to deference.
[125] Based on this evidence, there is nothing unreasonable about the trial judge’s decision that the actus reus of the offence had been made out.
[126] I would add that even though the trial judge used the word “training” in her reasons, it was clear that she understood the charge to involve “information and instruction” and specifically adverted to that fact in her judgment.
[127] Nor do I agree with Mr. Adler’s position that the trial judge’s finding that Mr. Saini was “in charge” of the yard was a “red herring.” The judge, in responding to the appellants’ argument that due diligence had been made out, pointed to the foreseeable dangers of leaving an unsupervised, untrained employee in charge of a propane facility. This foreseeability demonstrated that the appellants had not taken reasonable care and defeated due diligence on their part. In the absence of a supervisor, the appellants had to ensure other systems in place to guarantee adequate supervision. Even though Mr. Adler points out the existence of a security camera at the scene, there was no evidence as to the location, monitoring or even functioning of this device.
[128] Accordingly, this ground of appeal is dismissed.
II. DID THE JUDGE ERR BY FINDING THE APPELLANTS GUILTY OF FAILING TO TAKE REASONABLE PRECAUTIONS?
Factual Background
[129] This offence concerned the movement of two 2000 USWG tanks the distance of 40 feet. The location and specification of these tanks required TSSA approval and needed to comply with specific guidelines. Any movement, even if only on a temporary basis, required Sunrise to complete an application for a “modification” of the prior approval.
[130] There was no dispute that the appellants had not sought approval and, on that basis, the trial judge found that that the actus reus of the offence had been proven beyond a reasonable doubt. Turning to the mens rea component, and applying Sault Ste. Marie, the trial judge considered and rejected the evidence of two witnesses ultimately relied upon by the defence: John Ross Keys, and Robert McCullough, owner of Westside Services, who was hired by the appellants to repair and install parts. Both Mr. Keys and Mr. McCullough were unaware that a modification application was required prior to moving to establish due diligence.
[131] The trial judge found that there was no system in place to ensure compliance with the TSSA and that due diligence had not been established. The appellants were convicted on Count 2.
Analysis
[132] Mr. Adler argues the following grounds of appeal:
The appellants were entitled to rely upon the “officially induced error” found by the trial judge as a defence to this charge.
There was no evidence that moving the tanks constituted a danger.
The Ministry of Labour, having particularised this charge as the appellants having failed “to take the reasonable precaution of ensuring that a propane facility was installed and operated in accordance with regulatory requirements and safe industry practices” was obliged to call evidence on the latter and its failure to do fatally impacted the charge.
[133] I deal with each issue in turn.
Officially Induced Error
[134] The circumstances surrounding the officially induced error have been set out previously in these reasons.
[135] Mr. Adler argues that because the appellants were informed that they could carry on business as usual, that assurance was taken to mean all business conducted on the site. As with the submission relating to the MOE charges, I find this argument to be misconceived.
[136] The judge found that the utterances made by Mr. Heyworth led the appellants to mistakenly believe that the facility could be used as a truck to truck transfer site. That misapprehension, however, was clarified by the June 2007 CAD. In other words, by the time the tanks were moved, any misinformation had been corrected. Thus, the appellants could not rely on the induced error as a defence.
[137] Notwithstanding this correction, the officially induced error found by the judge had nothing to do with the movement of the tanks: it specifically related to the issue of truck to truck transfers. In other words, the appellants could not rely on the error as a justification for all business conducted on their site let alone actions in contravention of standard regulatory practice.
[138] Finally, I would add that even if the appellants had persuaded the judge that they were mistaken in their belief that no application to modify any existing approval was required, that belief, of itself, would not afford them a defence in law: R. v. Dofasko Inc. (2007), 2007 ONCA 769, 230 C.C.C. (3d) 280, at paras. 29-30 (Ont. C.A.); R. v. Rio Algom Ltd. (1988), 1988 CanLII 4702 (ON CA), 46 C.C.C. (3d) 242, at 249-50.
No Evidence of Danger
[139] Even though there was no specific evidence of the danger caused by moving the tanks, the trial judge found that the actions “may well have resulted in a dangerous situation given that the site was very close to a residential neighbourhood.”
[140] It was never alleged that the movement of the tanks was related to the explosions, however it was open for the trial judge to draw the inference that doing so triggered serious safety concerns. The use, transfer, and delivery of combustible, volatile gases are regulated for a reason: any accident, misuse or negligence has the potential to cause widespread damage and loss of life. This, of course, is what happened in this case albeit for other reasons. Accordingly, it was open to the trial judge to draw the inferences of potential danger due to the failure to follow set procedure and obtain legal permission to relocate the tanks. By failing to seek approval, it could hardly be said that the appellants took reasonable precautions to ensure that facility was operated in accordance with the regulations.
The Particularisation of Count 2
[141] Mr. Adler also complains that the Ministry of Labour failed to prove the particulars of Count 2 by failing to call evidence of “safe industry practice.” Having inserted that condition, despite it being unnecessary to do so, Mr. Adler submits that it was incumbent upon Ministry of Labour to prove that fact.
[142] I reject this ground of appeal for the following reasons.
[143] First, I agree with Ministry of Labour that the words were surplus and complemented the real kernel of the charge: the appellants’ breach of regulatory requirements. The entire purpose of the OHSA is to protect workplace safety in a broad based universally applied manner and “should be interpreted in a manner consistent with its broad purpose”: Timminco, at para. 22.
[144] Secondly, where an indictment particularises a number of different ways in which an offence has been committed, proof of one of one of those ways - so long as it is an essential element of the offence - is sufficient to found a conviction: R. v. Hoffman-La Roche (1981), 1981 CanLII 1690 (ON CA), 62 C.C.C. (2d) 118; R. v. Giguere, 1983 CanLII 61 (SCC), [1983] 2 S.C.R. 448; R. v. Wile (1990), 1990 CanLII 6830 (ON CA), 74 O.R. (2d) 289; R. v Krymowski, 2005 SCC 7, [2005] 1 S.C.R. 101.
[145] Finally, even if I am wrong on the above two points, the wording of s. 120(1)(b)(i) of the POA permits dismissal of an appeal where the appellant was not properly convicted on part of a count but was on another part.
For the above reasons, the appeal from conviction on Count 2 of the Ministry of Labour is dismissed.
IV. THE SENTENCE APPEALS
The Sentences Imposed by the Trial Judge
[146] The appellants appeal the sentence imposed by the trial judge on both the MOE and MOL convictions. With respect to the EPA counts, the trial judge imposed the following sentences:
The s. 14 EPA conviction:
• $4 million dollars to be apportioned equally between the two corporations
The Breaches of the Order:
• Count 1 $10,000 fine
• Count 3 $50,000 fine
• Count 4 $750,000 fine
• Count 5 $10,000 fine
• Count 6: $100,000 fine for Mr. Ben-Moshe
• Count 7: $100,000 fine for Mr. Belahov
The OHSA Sentences:
• Count 1: $250,000 fine
• Count 2: $30,000 fine
[147] The appellants argue that the fines imposed were without precedence and based on features erroneously identified by the judge as aggravating.
Legal Principles
[148] It is clear that an appellate court must give considerable deference to a sentence imposed by a trial judge and only interfere if that sentence is manifestly unfit: R. v. Rezaie, 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (C.A.), at paras. 17-21.
[149] The trial judge identified a number of aggravating factors that warranted an increased sentence including the widespread damage and effects caused by the appellants’ reckless behaviour in conducting truck to truck transfers without licence and with full knowledge of the risks associated with the practice. She also found that the appellants had more than adequately been warned by Ms. White of the circumstances that resulted in the offence and that quick action was required. The judge also properly took into account the appellants’ failure to co-operate and comply with the Order and their failure to take action to mitigate the effects of the explosion. All of these factors were properly characterised as aggravating.
[150] Against this, the trial judge also acknowledged the remorse expressed by the appellants and their lack of criminal records.
The Section 14 Conviction
[151] The appellants argue that the highest fine to be found amongst the precedents amounts to $800,000: R. v. BP Canada Energy Corporation, 2009 CarswellOnt 10101 (C.J.). Accordingly, the appellants argue that the $2 million in fines imposed are excessive and should be reduced. I disagree. The BP Canada case, whilst serious, involved a gas leak which caused temporary physical ailments such as headaches, sore throats and nausea, accompanied by a disruption to schools and business. The damage in the case at bar was far more serious. There is a dearth of precedents applicable to this case as the magnitude of damage was exceptional. I find that the sentence was fit and dismiss the sentence appeal.
The Breach of Order Counts
[152] The appellants argue that the fines imposed are excessive in light of the jurisprudence. They cite, as support, cases such as R. v. Ryan, 2010 CarswellOnt 16363 (C.J.); R. v. Northern Breweries Ltd., 2009 CarswellOnt 18955(C.J.); R. v. Soares Auto Body Ltd., 2012 CarswellOnt 1075 (C.J.); R. v. Zebra Three Corporation, 2012 CarswellOnt 17324 (C.J.).
[153] I disagree. The cases relied upon by the appellants bear no resemblance to the situation at bar. Here, there was no excuse as to the scale of the destruction wrought by the explosions which led to a mass evacuation of the neighbourhood. The clean-up required was urgent and on a much larger scale than the cases relied upon by the appellants. As the trial judge noted, the magnitude of the event was unprecedented in Ontario, and its seriousness could not be understated. Failure to clean up the aftermath after being ordered to do so required a punitive sentence: R. v. 310 Waste Ltd., 2006 CarswellOnt 10285 (C.J.); R. v. Tenny, 2016 CarswellOnt 20742 (C.J.).
[154] The appeal from sentence in respect of the breach of order convictions is dismissed.
The OHSA Sentences
[155] I also find the sentences imposed in respect of the OHSA offences to be fit. The trial judge correctly identified the aggravating and mitigating features of the offence and was cognisant of the case law. There is nothing in the trial judge’s decision that indicates error and I agree with the respondent that the fine was consistent with other fatality cases: R. v. Enwave District Energy Limited, (unreported, 28 September 2004) (O.C.J.); R. v. Elderston Manor Estates, (unreported, 5 February 2008) (O.C.J.).
[156] For these reasons, the appeal against sentence is dismissed.
S.A.Q. Akhtar J.
Released: 27 November 2017
CITATION: R. v. Sunrise Propane Energy Group Inc., 2017 ONSC 6954
COURT FILE NO.: CR-16-10000012-00AP
DATE: 20171127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF THE ENVIRONMENT AND CLIMATE CHANGE
Respondent
– and –
SUNRISE PROPANE ENERGY GROUP INC., 1367229 ONTARIO INC., SHAY BEN-MOSHE, and VALERY BELHOV
Appellants
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.