Ontario (Ministry of Labour) v. Hamilton (City)

Ontario (Ministry of Labour) v. Hamilton (City) Collection Decisions of the Court of Appeal Date 2002-01-29 Docket numbers C35814 Judges Weiler, Karen Merle Magnuson; Sharpe, Robert J.; Simmons, Janet M. Subject Civil Decision Content DATE: 20020129 DOCKET: C35814 COURT OF APPEAL FOR ONTARIO WEILER, SHARPE and SIMMONS JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF LABOUR) ) ) ) ) Bruce Arnott and Brian Blumenthal for the Appellant Appellant ) - and - ) ) THE CORPORATION OF THE CITY OF HAMILTON ) ) ) Mark Mills and Jacqueline Lund for the Respondent Respondent ) Heard: December 7, 2001 On appeal from the judgment of Justice Nick Borkovich dated December 1, 2000 dismissing a summary conviction appeal from the acquittal by Justice Stanley W. Long. SHARPE J.A.: [1] This appeal arises from a prosecution under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). An employee of the respondent was fatally injured by a reversing dump truck. After five days of evidence, the trial judge granted the respondent’s motion for a directed verdict. The charges particularized the duty of the employer under s. 104 of Ontario Regulation 213/91 (the “Regulation”) to provide a signaller in certain circumstances. The trial judge ruled that while there was evidence that a signaller was required, the evidence also established that the deceased worker was acting as the signaller on the day in question. The trial judge ruled that in view of the wording of the charge, it was not open to the Crown to prove the offence by showing that the signaller failed to carry out the duties prescribed by s. 106 of the Regulation. The Crown’s appeal to the Superior Court of Justice was dismissed. The Crown appeals, with leave, to this court. FACTS [2] On July 17, 1997 Paolo Faustini, an employee of the respondent, was killed when he was run over by a reversing dump truck. At the time of the accident, Faustini was the lead hand on a construction crew resurfacing a road. The resurfacing work included the deposit of a layer of crushed stone from a spreader attached to the back of a dump truck. The spreader was used while the truck reversed. [3] The evidence at trial established that on the day in question, Faustini was acting as both signaller and as the operator of the spreader. There was evidence that when the truck is reversing and stone is being laid, the attention of the operator of the spreader must be on the flow of the crushed stone. The rate of flow of the stone has to be adjusted, using the lever at the side of the spreader, to compensate for changes in the speed of the truck. There are also levers at the back of the spreader used to adjust the width of the spread. These levers are ordinarily adjusted when the truck is stationary, but occasionally they are adjusted by hand or with a shovel while the truck is reversing. To operate or adjust these levers, the worker has to stand directly behind the spreader where the driver cannot see him. The box of the truck obstructs the truck driver’s view of the path of travel in reverse. In particular, the driver can see nothing behind the box, including the spreader. [4] The driver of the truck testified that on the day in question Faustini was operating the spreader and giving him signals. As the truck reversed for the final time, the driver could see Faustini in the driver’s side rear view mirror. Faustini was standing on an embankment within one foot of the spreader. He had one hand on the handle of the spreader and one hand on the lever controlling the gate of the spreader. He appeared to be looking underneath the spreader to regulate the flow of the stone. The driver reversed on Faustini’s signal. The road turned to the left and the driver looked at his passenger side mirror. As the truck reversed, the driver looked back through the driver’s side mirror. He saw no one and continued to reverse. No one actually saw the truck strike Faustini. The driver felt a bump, but only realized the truck had run over Faustini when another worker saw Faustini’s body laying fifteen to twenty feet in front of the truck. [5] The respondent was charged on an information containing the following three counts: (1)… failing, as an employer, to ensure that the measures and procedures prescribed by section 104 of Ontario Regulation 213/91, were carried out at a project located in a laneway known as Jackson’s Lane, running off Lake Avenue, in the City of Hamilton, contrary to section 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. Particulars: The accused failed to ensure that the operator of a dump truck was assisted by a signaller. A worker, Paolo Faustini, was killed. (2)… failing, as an employer, to take every precaution reasonable in the circumstances for the protection of a worker at a workplace located in a laneway known as Jackson’s Lane, running off lake Avenue, in the City of Hamilton, contrary to section 25(2)(h) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. Particulars: The accused failed to take the reasonable precaution of implementing procedures whereby a worker operating levers at the back of a dump truck would not be endangered by the truck reversing. A worker, Paulo Faustini, was killed. (3)… failing, as an employer, to take every precaution reasonable in the circumstances for the protection of a worker at a workplace located in a laneway known as Jackson’s Lane, running off Lake Avenue, in the City of Hamilton, contrary to section 25(2)(h) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. Particulars: The accused failed to take the reasonable precaution of having a signaller assist the operator of a dump truck where the operator did not have a clear view of the intended path of travel. A worker, Paolo Faustini, was killed. LEGISLATION [6] As appears from the information, the respondent was charged under s. 25(1)(c) and 25(2)(h) of the OHSA: 25. (1) An employer shall ensure that, (c) the measures and procedures prescribed are carried out in the workplace; … 25. (2) Without limiting the strict duty imposed by subsection (1), an employer shall, (h) take every precaution reasonable in the circumstances for the protection of a worker; … [7] “Prescribed” is defined by s. 1(1): “prescribed” means prescribed by a regulation made under this Act. [8] Sections 104, 105 and 106 of the Regulation provide as follows: 104. No vehicle, machine or equipment, or crane or similar hoisting device, or shovel, backhoe or similar excavating machine shall be operated unless the operator is assisted by a signaller, (a) where the operator’s view of the intended path of travel of any part of it or its load is obstructed; or (b) where it is in a location in which a person may be endangered by any part of it or its load. 105. An operator of a vehicle, machine or equipment, or crane or similar hoisting device, or shovel, backhoe or similar excavating machine who is required to be assisted by a signaller shall operate as directed by the signaller. 106. (1) A signaller shall be a competent worker and shall not perform other work while acting as a signaller. (2) A signaller, (a) shall be clear of the intended path of travel of the vehicle, machine or equipment, crane or similar hoisting device, shovel, backhoe or similar excavating machine or its load; (b) shall be in full view of the operator of the vehicle, machine or equipment, crane or similar hoisting device, shovel, backhoe or similar excavating machine; (c) shall have a clear view of the intended path of travel of the vehicle, machine or equipment, crane or similar hoisting device, shovel, backhoe or similar excavating machine or its load; and (d) shall watch the part of the vehicle, machine or equipment, crane or similar hoisting device, shovel, backhoe or similar excavating machine or its load whose path of travel the operator cannot see. (3) The signaller shall communicate with the operator by means of a telecommunication system or, where visual signals are clearly visible to the operator, by means of prearranged visual signals. JUDICIAL HISTORY (a) Trial judgment [9] After five days of evidence, the respondent brought a motion for a directed verdict. The trial judge found that the evidence was clear that the deceased, Paul Faustini “was, at all material times, a signaller. That was his job and that is what he was doing.” The trial judge rejected the Crown’s submission that a signaller in s. 104 means a signaller performing the duties defined by s. 106, and ruled that evidence that Faustini was also doing the work of a spreader could not be relied upon as evidence of the offence charged. The trial judge held that s. 106 was a different offence and that as the charges had been laid under s. 104, the Crown could not ask for a conviction on the basis of a departure from the requirements of s. 106: The accused could have been charged that the signaller was doing other work, such as spreader, that the vehicle was not clear of the intended path of travel, etcetera. These are all under Section 106, not 104. … In my view there is no ambiguity in Section 104. There is no ambiguity what the word “signaller” means … I do not agree with the Crown that I should read in Section 106 in order to find what the duties of signaller are because the witnesses told me. The section [104] is clear, “a signaller”. The deceased was giving the truck driver, Mr. Carducci, signals at various times on the relevant day of July the 17th, 1997. [10] Count 3 made no reference to s. 104, but the Crown had particularized that charge in terms of failure to have a signaller. The trial judge ruled that as the evidence demonstrated that Faustini was the signaller on the day in question, there was no evidence to support that charge. (b) Summary Conviction Appeal [11] The Crown’s summary conviction appeal to the Superior Court of Justice was dismissed by Borkovich J. who gave brief oral reasons stating that he could find no error in the judgment of the trial judge. (c) Leave to Appeal [12] Leave to appeal to this court was granted by Carthy J.A. who stated: “This is an important statute, and if it is to be enforced there must be no doubt as to how to lay charges for its breach.” It was noted that the same point had been differently decided in other cases [see R. v. Hard-Rock Paving Company, unreported, January 14, 2000, Ont. C.J.; R. v. Briscoe and Smith Construction Company Arnprior Ltd., unreported, September 7, 1993, Ontario Court (Prov. Div.)]. [13] The appellant appeals the trial judge’s ruling that a directed verdict be entered on counts 1 and 3 of the information. ISSUE [14] The following issue arises on this appeal: Where an employer is charged under the OHSA with failing to provide a signaller as required by s. 104 of the Regulation, may the offence be proved by evidence showing that the signaller failed to satisfy the requirements of s. 106 of the Regulation? ANALYSIS [15] I respectfully disagree with the way the trial judge and the summary conviction appeal judge interpreted the Regulation and the charges faced by the respondent. It is my view that on a proper construction of the Regulation and the charges the respondent faced, there was some evidence upon which a properly instructed trier of fact could make a finding of guilt and as such the motion for a directed verdict should have been dismissed. I arrive at that conclusion for the following reasons. [16] The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided. [17] This principle has been recognized and applied in several recent decisions of this court. In R. v. Timminco Ltd. (2001), 54 O.R. (3d) 21 (C.A.) at 27, Osborne A.C.J.O. stated: The Occupational Health and Safety Act is a public welfare statute. The broad purpose of the statute is to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace. It should be interpreted in a manner consistent with its broad purpose. [18] Laskin J.A. adopted the same principles when interpreting the Highway Traffic Act, R.S.O. 1990, c. H.8, s. 84.1 dealing with the hazard of “flying truck wheels” in Ontario (Minister of Transport) v. Ryder Truck Rental Canada Ltd. (2000), 47 O.R. (3d) 171 at 174: The modern approach to statutory interpretation calls on the court to interpret a legislative provision in its total context. The court should consider and take into account all relevant and admissible indicators of legislative meaning. The court’s interpretation should comply with the legislative text, promote the legislative purpose, reflect the legislature’s intent, and produce a reasonable and just meaning [Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), at p. 131.] The Supreme Court has repeatedly affirmed this approach to statutory interpretation, most recently in R. v. Gladue, [1999] 1 S.C.R. 688 at p. 704, 171 D.L.R. (4th) 385, where Cory and Iacobbucci JJ. wrote: As this Court has frequently stated, the proper construction of a statutory provision flows from reading the words of the provision in their grammatical and ordinary sense and in their entire context, harmoniously with the scheme of the statute as a whole, the purpose of the statute, and the intention of Parliament. The purpose of the statute and the intention of Parliament, in particular, are to be determined on the basis of intrinsic and admissible extrinsic sources regarding the Act’s legislative history and the context of its enactment… [19] In Ontario (Workplace Safety and Insurance Board) v. Hamilton Health Sciences Corp. (2000), 51 O.R. (3d) 83 at p. 87, Rosenberg J.A. adopted a similar approach when interpreting the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A: The starting point for the interpretation of the statutory provisions involved in this appeal is s. 10 of the Interpretation Act, R.S.O. 1990, c. I. 11. 10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit. (Emphasis added) By its terms, s. 10 applies to penal statutes. Iacobucci J. considered the application of s. 10 in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193. He held that s. 10 directs the court to not only consider the plain meaning of the specific provisions in question, but the scheme of the Act as a whole, its object and the intention of the legislature. [20] It remains true, of course, that penal legislation, even of the public welfare variety, must also be interpreted in a manner consistent with the procedural rights of the accused. The accused is entitled to have full and fair notice of the charges and to make full answer and defense to those charges. In the end, a balance must be struck to arrive at an interpretation that promotes the larger objects of the legislation and at the same time respects the procedural rights of the accused. [21] The charges at issue here were brought pursuant to the Provincial Offences Act, R.S.O. 1990, c. P.33. The legislative intention reflected in that Act was well captured by MacDougall J. in Ontario (Ministry of Labour) v. Discovery Place Ltd., [1996] O.J. No. 690 at para. 18, a case dealing with a prosecution under the OHSA: The overall philosophy of the Provincial Offences Act is to ensure that technical objections do not impede the arrival of a verdict on the merits. [22] Guided by these interpretive principles, I cannot accept the respondent’s submission that ss. 104 and 106 of the Regulation should be read as, in effect, creating two distinct offences, each of which must be read and prosecuted without reference to the other section. In my view, both provisions reflect the legislature’s intention to deal with precisely the same occupational risk of harm, and on a fair reading of their terms, they are properly read together as complementing each other. This interpretation best promotes the public safety and welfare purpose of the legislation, while fully respecting the procedural rights of the accused. [23] [23] Section 104 creates a duty on employers to provide a signaller in certain very well defined situations. Section 106 prescribes the duties of a signaller where one is required. While I agree with the respondent that s. 106 is not, strictly speaking, a definition section, I cannot read it as reflecting a legislative intent to create a separate and distinct offence that must be prosecuted without reference to s. 104. It is, rather, a provision that explains and amplifies the duty created by s. 104 and the other sections of the Regulation that require a signaller. Section 106 does not, standing by itself, create an offence distinct from and independent of s. 104 or some other provision creating a duty to have a signaller. Unless a signaller is required by some other provision, there is no basis for charging an accused for failing to have a signaller perform the duties prescribed by s. 106. Thus, if a charge were laid or particularized under s. 106, it would be necessary to have reference to s. 104 or some other provision requiring a signaller. [24] In my view, this feature of s. 106 seriously undermines the foundation of the respondent’s argument that ss. 104 and 106 prescribe different and distinct duties and are therefore separate and distinct charging sections that must be read independently from one another. If the charge were particularized under s. 106, as the respondent says it should have been, it would be necessary also to have reference to s. 104 or to some other section that creates a duty to have a signaller. If a charge under s. 106 could only be made out by reference to some other section, I fail to see why it is not proper to read a charge that particularizes s. 104 in the light of the requirements of s. 106. [25] In the circumstances of the present case, it is my view that the charge was properly laid with reference to s. 104 as that section is the source of an employer’s duty to have a signaller. We are not dealing with independent offences, each of which has its own definition and each of which must be separately and distinctly charged to avoid confusion or unfairness to the accused. We are dealing with a single duty that is created by s. 104 and more fully elaborated by reference to s. 106, and that can give rise to an offence by reference to either section. [26] This feature of the relationship between ss. 104 and 106 distinguishes the decision of this court in R. v. Art Ellis Construction (St. Catherines) Ltd., [1968] 1 O.R. 491. In that case, the accused was charged with failure to furnish prescribed equipment and materials, but the evidence proved the different offence, created in a different subsection, of failing to use and to maintain materials in the manner prescribed. There, the statute created two separate and distinct duties giving rise to separate and distinct offences. Here, as I have indicated, the same duty created by one section is elaborated by another section. [27] There is no suggestion that the respondent was in any way misled by the wording of the information as to the nature of the charge it faced. Nor would reading s. 104 together with s. 106 cause the respondent any prejudice in the preparation of its defense. [28] Given the relationship between ss. 104 and 106, it is my view that the principle expressed in cases such as R. v. Saunders, [1990] 1 S.C.R. 1020 that the Crown must prove the charge as particularized is not applicable. In Saunders, the Crown particularized the offence as conspiracy to traffic in heroin, but proved a conspiracy to traffic in a different drug. The Supreme Court of Canada found that the accused could only be convicted of the offence as particularized. In the case at bar, the Crown has not alleged one offence and then proved another to the prejudice of the accused. Here the Crown led evidence on the very same offence that was charged with no prejudice to the accused. [29] Quite apart from s. 106 and its use to explain or amplify the extent of the duty created by s. 104, it seems to me that there was some evidence of an offence under s. 104 alone. I would read the charges against the respondent as relating to a specific moment in time, namely, the point at which the dump truck was reversing with the driver’s view of the intended path of travel obstructed when the fatal accident occurred. If there had been a signaller assigned to the job that day who had gone off for a break while the truck was reversing without watching to make sure the movement could be safely made, surely the respondent would have been in breach of s. 104. The respondent was required, at that precise and critical moment, to have a signaller directing the reversing dump truck. In my view, there is no meaningful distinction between the example I have just given and the situation where the signaller ceases to act as signaller and turns his attention to spreading the stone. The driver’s evidence was that while the deceased signalled him to reverse the truck, as he reversed, he could see no one behind the truck. This amounted to some evidence that at the precise moment the accident occurred, no one was acting as the signaller. In my view, it was open to a properly instructed trier of fact to make a finding on that evidence that the employer failed to live up to its duty to provide a signaller as required by s. 104. [30] In any event, even if there is a defect in count 1 on account of the specific reference to s. 104, the same cannot be said of count 3. That count does not refer to s. 104, and is not based upon an allegation that a specific regulation was breached, but rather that the respondent failed “to take every precaution reasonable in the circumstances for the protection of a worker” contrary to s. 25 (2)(h) of the Act. As there was, in my view, some evidence that the employer failed to provide a signaller at the relevant time, I do not agree that there was a complete absence of evidence of the charge as particularized by the Crown. [31] Finally, I turn to the question of amendment. Although the appellant did not seek an amendment at trial or in its factum, we invited counsel to provide us with written submissions as to whether it would be appropriate at this stage of the proceedings to allow the appellant to amend the information to include further particulars related to the requirements of s. 106. While the appellant maintains that no amendment is required, it submits that if necessary, the information should be amended in the following manner. Count 1 should be amended by adding the words "who was not performing other work while acting as a signaller:” after the word “signaller”. Count 3 should be amended by adding the words “as described in Ontario Regulation 213/91” after the word “signaller”. [32] I reject the submission of the respondent that we lack the power to amend the information in the circumstances of this appeal. The Provincial Offences Act makes generous provision for the powers of an appellate court: s.121 Where an appeal is from an acquittal, the court may, by order, (a) dismiss the appeal; or (b) allow the appeal, set aside the finding and, (i) order a new trial, or (ii) enter a finding of guilt with respect to the offence of which, in its opinion, the person who has been accused of the offence should have been found guilty, and pass a sentence that is warranted in law. s.125 Where a court exercises any of the powers conferred by sections 117 to 124, it may make any order, in addition, that justice requires. [33] These provisions are essentially the same as the Criminal Code provisions considered by the Supreme Court of Canada in Elliott v. The Queen (1977), 38 C.C.C. (2d) 177. There it was held to be appropriate to amend a charge to conform with the evidence adduced at trial and to order a new trial on the amended charge. Ritchie J., writing for the majority, stated at p. 204 that an order allowing an amendment could be made even where the order for a new trial depended upon the amendment: In my view, When Parliament authorized the Court of Appeal, in the exercise of its power, to order a new trial, to “make any order, in addition, which justice requires” it must be taken as having authorized that Court under those circumstances to make any additional order which the ends of justice require whether the order for a new trial is dependent upon the additional order or not. I do not think that the wide powers conferred on the Court of Appeal by s. 613(8) are to be narrowly construed but rather that they are designed to ensure that the requirements of the ends of justice are met, and are to be liberally construed in light of that overriding consideration. [34] I accept the respondent's submission that an amendment should not be allowed under s. 125 where the effect would be to charge a completely different offence. However, in this case, as in Elliott, the effect of the amendment is not to substitute a different charge, but rather to provide further particulars of the same charge: namely, failure to provide a signaller as required by the Regulations, contrary to OHSA s. 25(1)(c), and failure to take every precaution reasonable in the circumstances for the protection of a worker, contrary to OHSA s. 25(2)(h). [35] In my view, in view of all the circumstances, the respondent would not be unfairly prejudiced by amending the information at this stage. Accordingly, while it is my view an amendment is not, strictly speaking required, for the avoidance of any possible uncertainty, I would allow the appellant to amend the information in the terms set out above. CONCLUSION [36] For these reasons, I would allow the appeal, set aside the directed verdict of acquittal and order a new trial. “Robert J. Sharpe J.A.” “I agree K.M. Weiler J.A.” “I agree J. M. Simmons J.A.” Released: January 29, 2002