Ontario (Ministry of Labour) v. Semple Gooder Roofing Corporation, 2016 ONCJ 885

ONTARIO COURT OF JUSTICE CITATION: Ontario (Ministry of Labour) v. Semple Gooder Roofing Corporation, 2016 ONCJ 885 DATE: 2016 02 23 IN THE MATTER OF an appeal under s. 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: Ontario Ministry of Labour Respondent — AND — Semple Gooder Roofing Corporation Appellant Before Justice J. Ritchie Reasons for Decision on Appeal released on February 23, 2016 A. Landre .................................................................................. counsel for the Respondent J.

Clark .............................................. counsel for Semple Gooder Roofing Corporation Ritchie, J.: [ 1 ] Semple Gooder Roofing Corporation is appealing two convictions that were entered by Her Worship M. Ross Hendriks, Justice of the Peace, on April 8, 2015 following a five-day trial. The charges, which were laid under the Occupational Health and Safety Act, alleged that the appellant failed to ensure that a worker was protected by a guardrail system and failed to ensure that a worker was protected by a method of fall protection (in this case, a “travel restraint system”).

The charges arose out of an accident at a particular work site. [ 2 ] Antonio Goncalves, a worker for the appellant, was injured when he fell off a roof on December 12, 2011 at 875 Middlefield Road, Toronto. Mr. Goncalves had opened up part of the guardrail system for the purpose of dumping waste material off of the roof and he was not wearing his safety harness. [ 3 ] The learned Justice of the Peace made some significant findings, as follows: [293] The defendant has provided extensive evidence, which I accept as true, that it set up a guardrail system around the perimeter of this roof.

I also accept that it provided appropriate equipment to its workers, to tie off, which constituted a travel restraint system, for use when the guardrail system was opened up. Either fall protection system, if properly used, satisfies its prima facie legal obligations. [294] The defendant also demonstrated that it had clear internal policies. It [provided various types of safety training and planning to its workers and supervisors].

It also demonstrated that it hired outside consultants, to teach various health and safety courses, and more importantly, to perform spot audits, for its workers, as well as relying on its own management to perform such tasks. Workers who failed to use safety equipment were sent home without pay for a day, and given retraining. The defendant was prepared to use discipline to enforce safety standards, and I accept that it has fired other long-term workers who repeatedly breached its safety requirements.

[295] In fact, the defendant has generally met or exceeded many industry standards in its operations, and has obtained certificates to thiseffect … [4] In light of those findings, one might ask why the appellant was found guilty on both counts. It is my respectful opinion that thelearned Justice of the Peace misdirected herself on the law. [5] The first count alleged that the appellant failed to ensure that workers were “adequately protected by a guardrail system” at thework site in question. The Justice of the Peace concluded that the actus reus of the offence had been proven, because Mr.

Goncalves hadopened up the guardrail to dump garbage. I do not agree. In her decision, the Justice of the Peace accepted evidence (including thetestimony of the Ministry of Labour inspector) which indicated that the temporary opening of the guardrail for that purpose waspermissible and proper.

The appellant had installed a guardrail system which met the regulatory requirements, and the fact that theinjured worker opened it up for a legitimate purpose is not proof of the actus reus of the alleged offence. [6] The second count alleged that the appellant failed to ensure that, where a guardrail system was not in place, workers wereadequately protected by fall protection equipment, such as a travel restraint system, at the work site in question. I might mention that Iam giving the provisions on which the charge is based a very generous

interpretation, bearing in mind the worker safety purpose of thelegislation. [7] The Justice of the Peace concluded that the actus reus had been proven with respect to count two, because Mr. Goncalves didnot put on his safety harness. Again, I do not agree. The safety equipment was present on the work site, and it was operational. Theappellant was not charged with failing to provide safety training or with failing to enforce safety rules and practices. In fact, the evidenceestablished that Mr.

Goncalves had been trained in the use of the safety harness and that he knew he was required in the circumstances tobe wearing it [see, for example, paragraphs 58 and 76 of the decision at trial]. [8] In light of my conclusions, it is not necessary to consider the “due diligence” defence. However, I will provide some comment,because that was the focus of the decision on appeal. [9] The learned Justice of the Peace began her analysis with the following comment: “Assuming without deciding that thedefendant is in need of a due diligence defence” [paragraph 270].

She then went on to say: “The issue at this trial is whether thedefendant can show, on a balance of probabilities, that it took all reasonable steps to prevent this accident” [paragraph 296]. [10] If this were a “due diligence” situation, that is not the correct legal test. The correct test is set out in R. v. Sault Ste.

Marie, (SCC), 40 C.C.C. (2d) 353, a 1978 decision of the Supreme Court of Canada, as follows: “Whether the accused exercised allreasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure theeffective operation of the system” [page 377]. The test focuses on “preventing the commission of the offence” and not the much broaderconcept of “preventing the accident”. [11] The evidence which the Justice of the Peace accepted dealt with the temporary removal of guardrails and the use of safetyharnesses.

The rules are well summarized in Exhibit 9, a safety booklet, as follows: [12] “Temporary removal of a guardrail by workers in order to perform work, will require the worker(

s) to protect themselves by useof either travel restraint or fall arrest protection methods” [paragraph 58 of the decision at trial]. [13] The learned Justice of the Peace concluded in paragraph 310 of her decision that: “The defendant has failed to show on abalance of probabilities, that it took all reasonable steps to prevent this accident. There was no clear process in place for the secondgarbage disposal technique, at the time of the accident.” [14] As I have mentioned, “preventing the accident” is not the correct legal test in a “due diligence” situation.

Second, the Justice ofthe Peace is purporting to impose a requirement that there must be a “clear process” for dumping garbage from the roof. In fact, therewere clear safety rules in place – every worker who was dumping garbage had to be wearing a safety harness when the guardrail wasopened up. A decision of the Ontario Court of Appeal spells out the point I am making. In R. v. Brampton Brick Ltd., [2004] O.J. No.3025, at paragraph 28, the Court referenced its earlier decision in R. v.

Kurtzman (1991), (ON CA), 66 C.C.C. (3d)161: “The employer must show it acted reasonably with regard to the prohibited act alleged in the particulars, not some broader notion ofacting reasonably”. The question is whether the specific charges in question have been proven and not whether, for example, withhindsight the employer could have taken some other steps to improve worker safety. [15] Justice of the Peace Hendriks fairly acknowledged that Mr.

McGoey (the person in charge of worker safety for the appellant)“is doing everything in his power to ensure that his work sites are safe” and that the appellant “generally met or exceeded many industrystandards in its operations”. If the appellant was required to establish the due diligence defence at trial, then they successfully did so, inmy opinion. [16] I wish to thank Counsel for their factums and for the instructive case law that they provided. I have carefully considered all ofthe submissions on this appeal. The appeal from the decision of the trial court is allowed.

In light of the evidentiary findings of the trialcourt (based on a very thorough analysis of the evidence) and in light of my rulings on the law, a re-trial of the charges is not justified. The convictions are set aside and acquittals are substituted on both counts. Justice J. Ritchie

February 23, 2016