Ontario (Ministry of Labour) v. BFI Canada Inc., 2013 ONCJ 817

Citation: Ontario (Ministry of Labour) v. BFI Canada Inc. , 2013 ONCJ 817 ONTARIO COURT OF JUSTICE IN THE MATTER OF an Appeal under Clause 116(2)(

a) of the Provincial Offences Act and Section 25(2)(

a) of the Occupational Health and Safety Act , R.S.O. 1990. c.1 BETWEEN: MINISTRY OF LABOUR Respondent — AND — BFI CANADA INC. Appellant Before Justice David M. Paciocco Reasons for Judgment released on 8 May 2013 Ms. Grainne McGrath and Amanda Landre (student-at-law)...................for the Prosecution Mr. David I. Crocker............................................................for the Appellant BFI Canada Inc. PACIOCCO, J.: I. Introduction [ 1 ] On May 28, 2009, Mr.

Michael Steacy was working as a “helper” with BFI Canada Inc. (BFI) on a side-loading refuse truck that was collecting waste for the City of Ottawa. He was a temporary employee, placed with BFI by Handyman Personnel. Mr. Steacy was seriously injured during his shift when he stepped out of the moving vehicle and his foot was crushed under the wheel. The injuries he sustained were severe enough that his foot had to be amputated. As a result of the ensuing investigation BFI Canada Inc. was prosecuted for two offences under the Occupational Health and Safety Act , R.S.O. 1990, c.1.

The first charge, contrary to section 25(2)(a), alleged that BFI failed as an employer to provide information, instruction or supervision to a worker at a workplace located at Old Colony Road, Kanata, Ontario. Old Colony Road is the scene of the accident. Mr. Steacy’s “workplace” was both the truck, and the locations where refuse was being collected. BFI was convicted of this offence after trial. This conviction is the subject of BFI’s appeal. [ 2 ] A second charge was laid against BFI and tried.

This charge alleged that, contrary to section 25(2)(h), BFI failed as an employer to take every precaution reasonable in the circumstances for the protection of Mr. Steacy. No finding was expressed by the Learned Trial Justice with respect to this charge, although it is implicit that she found the charge to be made out, for she ruled that the section 25(2)(

h) charge “is redundant and is hereby stayed.” Had the Learned Trial Justice found BFI not guilty of that count, an acquittal and not a stay would have been ordered. On examination, the section 25(2)(

h) charge does not appear to be redundant to the section 25(2)(

a) charge. Those two charges were particularized, with each alleging different omissions. The Crown has not, however, appealed the decision that the two counts are “redundant,” nor does the Crown challenge the propriety of the stay. Having reflected on the matter I am persuaded that it would be inappropriate to resurrect that charge in the absence of a Crown appeal from the “redundancy” finding. I am therefore proceeding on the basis that this Appeal is solely about the section 25(2)(

a) conviction and that the judicial stay of proceedings with respect to the section 25(2)(

h) charge is to be left undisturbed by these proceedings. II. The Elements of the Section 25(2)(

a) Charge

[3] It is common ground between the parties that section 25(2)(

a) is a strict liability offence within the meaning of R. v. Sault Ste.Marie (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.). The burden is therefore on the Crown to prove the prohibited act, oractus reus, beyond a reasonable doubt. The prohibited act under section 25(2)(

a) is failing, as an employer, to provide information,instruction and supervision to protect the health or safety of the worker. A Trial Justice, seized of a case of this kind, is therefore requiredby law to adjudicate whether the Crown has proved that failure beyond a reasonable doubt. If the Trial Justice finds according to law thatthe Crown has discharged that burden, the onus shifts to the defence to prove due diligence, or in other words, the absence of negligence,on the balance of probabilities. Only if the defence fails in doing so is a conviction appropriate. III.

The Actus Reus Appeal [4] The first ground of appeal argued before me by Mr. Crocker, counsel for BFI, is that the Learned Trial Justice erred when sheconcluded that “[h]aving heard the totality of the evidence, the Court finds that the prosecution has met its burden of proving theelements of the offence….” This ground of appeal was not included in BFI’s Notice of Appeal but was contained in BFI’s factum. TheCrown in the right of the Ministry of Labour of Ontario, represented by Ms. McGrath, has consented to an amendment to the Notice ofAppeal to include this ground of appeal, which was argued before me.

As a matter of housekeeping, I am granting leave to amend theNotice of Appeal as requested. I begin this decision with that ground of appeal. [5] Based on the arguments before me and an analysis of the Reasons for Judgment I find that the Learned Trial Justice did err infinding that the Crown had met its burden of proof. I am satisfied that she misapplied the legal test, failing to conduct a discrete andproper evaluation of whether the Crown had proved beyond a reasonable doubt that BFI had failed to “inform, instruct and supervise.”Mr.

Crocker suggested in his argument that this error occurred because the learned Trial Justice may have reasoned that since theaccident happened, it follows that there must not have been adequate information, instruction and supervision provided. I find no supportfor this theory. What does find support, however, is that the Learned Trial Justice erroneously melded the actus reus and due diligenceanalysis. I am persuaded that she effectively concluded that the Crown had met its burden because the accused had not proved duediligence.

This error makes her finding that the prosecution had met its burden wrong in law. [6] I begin by observing that while there is an ultimate stated finding by the Learned Trial Justice that the Crown had met its burden(at page 463), at no time did the Trial Justice describe the obligation of the Crown to prove the prohibited act beyond a reasonable doubt,and no reference is made in the decision to what facts the Crown was required to prove to meet that burden. I recognize that the failure bya judge to articulate trite propositions of law is not, in isolation, a ground of legal error.

Where Reasons for Judgment suggest confusionor error, however, and relevant propositions of law have not been articulated it is impossible to presume that the Trial Justice understoodand properly applied the law. With respect, the Reasons for Judgment in this case do suggest confusion or error. They disclose that theLearned Trial Justice failed to turn her mind properly to the Crown’s burden.

I say this for three reasons. [7] First, beyond the bald conclusion that “the prosecution had met its burden,” at no time did the Learned Trial Justice make adiscrete finding that the Crown had proved beyond a reasonable doubt that BFI failed to “inform, instruct, or supervise” Mr. Steacy.During argument the Crown identified a passage found at page 452-453 of the Reasons for Judgment as housing the reasoning of theLearned Trial Justice on this issue.

In my view a finding that “BFI provided extensive ongoing health and safety training to its permanentfull-time employees but not its temporary helpers” is not a finding that BFI failed to “inform, instruct, or supervise” Mr. Steacy. Thispassage offers a comparative observation, contrasting “extensive” training in the case of full-time employees with something less fortemporary helpers. How much less is not identified. Notably this observation occurs during a recital of the facts, before the legal analysisis undertaken. This passage cannot, therefore, be taken to be a finding on the issues to be decided.

In my view the closest the LearnedTrial Judge came to addressing overtly the prohibited act that the Crown had to establish, (let alone the legal standard to be applied) wasin commenting, at p.461, that “BFI’s obligation went beyond informing, instructing and supervising their worker on the importance ofnot exiting a moving vehicle.

It had the responsibility to ensure that its procedures were being monitored and carried out.” Yet this is nota finding either, but rather a description of the obligation BFI had. [9] Second, the decision fails to grapple with key issues in the case necessary to resolve whether the Crown had discharged itsburden. The gravamen of the prohibited act, the thing the Crown was required to prove beyond a reasonable doubt, was that BFI failedto give “information” or “instruction” or “supervision” related to exiting a vehicle before it comes to a complete stop.

There wasevidence, recited by the Learned Trial Justice, that two BFI drivers, Mr. Perry and Mr. Lacelle, had each directed Mr. Steacy not to jumpout of the truck while it was moving. There was also evidence not recounted by the Learned Trial Justice that a supervisor, Mr. Fleming,had done so before Mr. Steacy took to the road. The key issue relating to the Crown burden was whether these communications satisfiedBFI’s obligations under section 25(2)(

a) yet there is no point in the decision where the Learned Trial Justice engages in an evaluation ofwhether these communications, in the context they occurred, were proven beyond a reasonable doubt not to be enough. This is a closequestion of mixed fact and law that is at the centre of the case. Had it been evaluated appropriately, one would have expected this to havefeatured in the decision.

Yet the only evaluation of adequacy of the “information,” “instruction” or “supervision” relates solely tosupervision, and as the Crown recognized in its factum at para. 61, this evaluation was done in the context of the due diligenceevaluation. In sum, this decision fails to disclose any consideration by the Learned Trial Justice of the central issue of whether the“information,” “instruction” and “supervision” that did occur was proved by the Crown to have been inadequate, beyond a reasonable

doubt. [10] Third, and most importantly, the structure and content of the decision as a whole disclose that the Learned Trial Justice merged the two distinct questions before her, effectively finding that the Crown had met its burden by deciding that BFI had failed to demonstrate due diligence. [11] The first structural indication that this is so occurs after the Learned Trial Justice outlined the material facts of the case. After she did so, she launched immediately into a due diligence analysis without engaging the issues on which the Crown bore the burden.

She said: “The defence, therefore, believes to have demonstrated through this that it has exercised all reasonable care by establishing that the employees understood their responsibilities under the system. Further, that even if the employer did not discharge those responsibilities properly, that the corporate accused is not guilty of the misdeeds of the employee. There are two parts to a legal defence using due diligence. The employer must prove it reasonably believed in a mistaken set of facts which, if true, would make the prohibited act or omission innocent:

a) That the employer had an honest subjective belief in a set of facts that, if true, would render the act innocent; and

b) That belief is objectively reasonable in the circumstances. [1] The burden of proof lies on BFI to prove that it had:

a) Established a safe and effective procedure to protect the safety of workers;

b) Communicated that system to the workers; and

c) Provided ongoing procedures in place to monitor and ensure the proper operation of that system.” The Reasons for Judgment then move immediately to a discussion of whether due diligence can be met where there is improper delegation, and whether there was adequate supervision of employees to support a due diligence finding. The decision then moves to its ultimate holding. [12] This same pattern is repeated by the Learned Trial Justice when that ultimate holding is expressed, at p.463.

This is the key passage relied upon by the Crown in its factum and in argument in support of its contention that Learned Trial Justice “applied the correct legal test.” Specifically, the Learned Trial Justice said: “Having heard the totality of the evidence, the Court finds that the prosecution has met its burden in proving the elements of the offence and the defence has not successfully proven due diligence. BFI Canada Incorporated did not, on May 28 th , 2009, have a safe and effective procedure in place that would protect the safety of its workers, and did not adequately inform, instruct, or supervise Mr.

Steacy, and therefore did not take every precaution necessary to protect him. A finding of guilt is therefore imposed on BFI on count one of the charges (emphasis added).” This passage does not reflect the application of the correct test. The reasons following the declaration that the Crown met its burden are concerning. The explanation given focuses exclusively on the “safe and effective procedure” and whether BFI “took every precaution required to protect.” The actus reus issue on which the Crown bears the burden is not, of course, about the possession of safe and effective procedures.

It is whether in this case on this occasion there was a failure to inform, instruct and supervise. As for the quality of any procedure and the presence of precautions relating to the statutory obligation in question, these are due diligence concerns that can be used to defend a case where the actus reus has occurred. [2] Moreover, the reference to taking “ every precaution necessary to protect [Mr. Steacy]” is also about due diligence. The actus reus is not met by proving the failure to take every precaution necessary.

It is met by proving a failure to inform, or instruct, or supervise on the occasion in question. In my view, the only explanation offered in this passage by the Learned Trial Justice for the ultimate holding amounts to a finding that BFI did not adequately inform, instruct, or supervise Mr. Steacy because BFI did not take every precaution necessary to protect him. This is not, with respect, a correct analysis.

[13] In sum, I am persuaded that the passages I have reproduced, in the context of a decision in which the Learned Trial Justice neither describes the Crown burden nor engages in an evaluation of the central actus reus issues in a case when those issues call for close examination, show on the balance of probabilities that the Learned Trial Justice failed properly to evaluate whether the Crown had proved the actus reus of the offence. IV. Delegation [14] I also find that the Learned Trial Justice erred in law in her treatment of delegation. [15] At issue in the case was

Section 7.3 of the “Operations and Safety Rule Book for Drivers and Helpers,” which articulates a corporate rule that “The driver of the vehicle is ultimately responsible for the safety of the helper on the collection vehicle.” The

section also “allocates the responsibility [to drivers] to explain the policies and procedures to new employees.” At page 459 of the Reasons for Judgment, after noting these sections, the Learned Trial Justice concluded that the “Operations and Safety Rule Book for Drivers and Helpers” “indicates that BFI delegated responsibility of the helper’s safety to the driver of the vehicle rather than the supervisor of the route.” She then said: “The delegation of responsibility onto the driver or employee is in direct contravention of the Occupational Health and Safety Act which states in Section 25(2) Without limiting the strict duty imposed by subsection (1), an employer shall (

a) Provide information, instruction and supervision to a worker to protect the health or safety of the worker (bold in original).” At page 462 the Learned Trial Justice said: “The statutory requirements under the Occupational Health and Safety Act , Section 25(2)(a), state, “an employer shall,” not “an employee shall,” not “an employer shall delegate to an employee.” Therefore under the Act , authority cannot be delegated to an employee.” [16] First, nothing in

section 7.3 says that BFI delegated responsibility for “the helper’s safety to the driver of the vehicle rather than the supervisor of the route .” Assigning “ultimate” responsibility to the drivers in a document intended for drivers and helpers does not imply that supervisors do not also bear responsibility for safety. Indeed, there was evidence before the Learned Trial Justice, not referred to in the Reasons for Decision, that a “Route Supervisor,” W.D. Fleming, was responsible for overseeing “some of the safety stuff,” (V3, 309, l.16) including over temporary workers (V.3, 310, l.5) such as Mr.

Steacy (V.3, 328, l.23). His evidence was that he briefs workers on what they require for their safety on a daily basis, and that he had done so in the case of Mr. Steacy (V.3, 342, l.29), including to make sure that the vehicle is stopped before he exists (V.3, 329, l.10-17; V.333, l.5). Mr. Fleming testified that he patrols and monitors company vehicles, and issues “Observational Behavioural Assessments,” leading to discipline where employees contravene company rules, including for exiting a vehicle before it is stopped. Much of this testimony was presented when Mr. Fleming was being examined by Ms.

McGrath for the Crown, who called him as her witness. Manifestly, in light of this testimony, the evidence before the Learned Trial Justice did not support the conclusion that only drivers were given responsibility over worker safety. Even allowing due deference to the findings of trial tribunals, it is in my view, a clear and palpable error to hold otherwise, absent a finding that the evidence of Mr. Fleming was not credible or reliable. Yet the Learned Trial Justice made no such finding. Indeed, she relied upon Mr. Fleming’s evidence, but solely to note that Mr.

Steacy had not been instructed specifically on working on side-loading vehicles and had not been given a copy of the “Operations and Safety Rule Book for Drivers and Helpers.” [17] Second, and independently of the factual error I have outlined, the Learned Trial Justice misapplied the concept of delegation in her reasoning. This is a legal error. A true “delegation,” – the kind that is impermissible in law generally and which is impermissible in the case of regulatory obligations – involves an attempted transfer of a task or responsibility to another, what Ms.

McGrath correctly and fairly referred to as an “abdication.” This kind of delegation occurred, for example, in R. v. Burak [unreported] (7 June 2006), (Ont. C.J.), where an employer responsible for training and supervising workers expected the agency that supplied the workers under contract to train and supervise them. It also happened in R. v. Napanee (Town) [1990] O.J. No. 731 (Ont. Prov. Ct) where a supervisor did not concern himself with day-to-day supervision but left it to the workers to consult an experienced co-worker.

By contrast, impermissible “delegation” does not occur when an employee or supervisor, having responsibilities to discharge, assigns tasks related to the discharge of those responsibilities to individuals within the organization. I agree with the comment in R. v. Lockyer [2009] O.J. No. 832 at para. 44 , that it is not unreasonable for those who bear responsibility for a task to “properly delegate this task to a reliable worker.” Indeed, a due diligence system will often require assigning responsibilities to those in a position to ensure that prohibited conduct is avoided.

Although the issue was different in the classic House of Lords case of Tesco Ltd. v. Nattrass [1972] A.C. 153 it was held that Tesco Ltd.had not improperly delegated its responsibility of ensuring that goods were not sold for more than they were being offered for, merely byassigning the responsibility to ensure this did not happen to a grocery store manager. Who better to take measures to monitor stock andpricing than the store manager? Indeed, the assignment of responsibility to someone in a position to assist in avoiding the prohibitedconduct was relied upon in that case as an indicia of due diligence.

By the same token, who better to assign responsibilities forsupervising the safety of helpers working in a truck than to truck drivers? As Mr. Crocker stressed in his submissions, the workplace inthis case was a mobile vehicle, not a factory. The drivers - permanent employees with significant safety training and material experience– are the only individuals present on an ongoing basis when helpers are aboard.

It would be folly and probably evidence of an absence ofdue diligence to fail to assign drivers responsibility for ensuring the safety of inexperienced employees who they are directing on site andonly they have ongoing access to.

The Learned Trial Justice erred in law in concluding that the Occupational Health and Safety Actprohibits “delegation” absolutely. [18] The Crown, while admitting that she was given pause when first reading the Learned Trial Justice’s comments relating todelegation, submitted before me that, read in context, these passages are not a bald assertion that delegation to employees is neverpermitted. The Crown argues that what the Learned Trial Justice was in fact saying is that it is improper to delegate supervisoryresponsibilities to employees without a system of reporting in place.

I recognize that the Learned Trial Justice did indeed follow her firstgeneral, unqualified comment that “delegation of responsibility onto the driver or employer is in direct contravention of the OccupationalHealth and Safety Act” with a discussion that directive 7-3 is missing “any kind of reporting mechanism” but I do not accept that sheintended this observation to qualify the absolute rule she pronounced. Her language in describing a delegation ban is too strong andunaccommodating for that.

She twice declared that delegation onto a driver or employee is in direct contravention of the Act, full stop,once before the reporting mechanism discussion, and once after without making any reference to reporting. Moreover, she grounded herconclusion that delegation is impermissible in a strict reading of the text of the statute, relying on the imperative direction that the“employer shall” carry out section 25(2)(

a) duties. If the phrase “employer shall” meant what the Learned Trial Justice interpreted it tomean, there would be no room for exception. I am satisfied that the Learned Trial Judge operated as though delegation is entirelyimpermissible, which is not correct. [19] In any event, I do not believe it to be the law that an employer can only delegate supervisory responsibilities to an employee ifthere is a reporting mechanism. No authority for that proposition was offered. It is important to bear in mind that due diligence isnothing more than the absence of negligence. In R. v.

Chapin (1979), (SCC), 45 C.C.C. (2d) 333 at 343-44 (S.C.C.),Dickson J. (as he then was) put it this way; “An accused may absolve himself on proof that he took all the care which a reasonable manmight have been expected to take in all of the circumstances, in other words, that he was in no way negligent.” Whether an employer hasbeen negligent in designing and administering the system they put in place to prevent conduct or omissions prohibited by regulatorylegislation is to be determined “depending upon the factual context of the workplace incident in question”: R. v.

Cementation CanadaInc. (Ont.C.A.), (27 June 2008), (unreported), docket M36308 at 12-13. In some cases assigning supervisory responsibility without areporting mechanism might be a neglectful way of ensuring compliance with a statutory duty. In other cases it may not be. The problemhere is that if the Learned Trial Justice proceeded on the assumption that it always was, she would have failed to conduct the kind ofevaluation required by law. V. Conclusion [20] The actus reus errors and the delegation errors I have identified are material and affect the conviction.

They impel a new trialsince the verdict arrived at was not achieved applying proper legal standards, and this is not a case where a conviction is obvious in spiteof the errors. There are triable issues here, particularly given the repeated warnings Mr. Steacy received in advance of the offenceparticularized in the charge from persons responsible for supervising his safety to refrain from obviously dangerous conduct. Nor is thisa case where an acquittal is inevitable since there are credibility and adequacy considerations relating to any information, instruction andsupervision that may have occurred.

I am therefore ordering a new trial. [21] Given that a new trial is required it is unnecessary for me to address the other sundry grounds of appeal relating to the merits ofthe case advanced in the Appellant’s factum. They are essentially fact-based grounds and the issues they present are best addressed at atrial by an adjudicator who has the benefit of receiving all of the evidence. [22] I will, say, however, that had I upheld the conviction I would have denied the sentencing appeal. The sentence imposed waswithin the range of sentences for the offence alleged, and no errors of principle were identified.

RELEASED MAY 8, 2013.

____________________________________ The Honourable Justice David M. Paciocco