R. v. Lebovic Enterprises Limited, 2010 ONCJ 631

COURT FILE NO.: 2811 999 09 1305 01 DATE: Dec. 20 th , 2010 Citation: R. v. Lebovic Enterprises Limited , 2010 ONCJ 631 ONTARIO COURT OF JUSTICE (Central East Region) B E T W E E N: ) ) Her Majesty The Queen ) ) ) N. Wilson, Counsel for the Prosecution ) ) ) - and - ) ) ) Lebovic Enterprises Limited ) ) ) J.R.

Cherniak, Counsel for the Defendant ) ) ) ) ) HEARD: December 8, 2010 JUDGMENT BELLEFONTAINE, J: This is an appeal brought on behalf of the Ministry of Labour under s.116 of the Provincial Offences Act on the basis that the presiding Justice of the Peace improperly reduced the fine agreed upon in a joint submission to sentence resulting in an unfit sentence being imposed.

An agreed statement of facts was provided to the Court indicating that Lebovic Enterprises Limited, a land development company, owned an old factory building and retained and signed a construction agreement with Lions Group Inc. to demolish the building and to remove all construction debris. Contrary to the provisions of the Occupational Health & Safety Act , they failed to provide a list of designated substances on the property to their contractor. Inspectors from the Ministry of Labour attended the project and observed a partially demolished building.

Five workers employed by Lions Group Inc. were actively involved in the demolition which had begun five days earlier. Laboratory analysis of various materials found in the building being demolished found the materials to contain asbestos, lead, mercury, and silicone which are designated substances that require special precautions to be taken when handling them. Lebovic entered into discussions immediately with the Prosecutor upon the charge being laid with respect to entering a plea of

guilty. The Court was told they had been in business for 30 years and have had no convictions for any related offence. They did do a walk-through of the site with the contractor and did not see any designated substances, and accordingly, the contractor began the work and apparently failed to stop when the materials were discovered that ought to have been known to their employees to be designated substances. The company had changed its procedures to ensure that no demolition projects in the future would be taken without having an expert inspection made to locate listed substances.

The Justice of the Peace made inquiries with respect to the exposure to the general public of the substances and was advised that the building was in an isolated location in a commercial area with a Honda vehicle dealership that was nearby. Counsel on behalf of the Ministry of Labour and counsel for Lebovic jointly submitted that a $40,000 fine was appropriate in the matter. After hearing from the parties and making inquiries, the Justice of the Peace stated: “Okay, given the submissions from both parties, particularly the case law in regards to R. v.

Cotton Felts Ltd. , and as I have mentioned, the five factors that the Court must consider, and I have already gone though the five factors, and the one question that I had in relation to this is the potential harm to the public. Given the mitigating factors that have come forward to this Court, it is important to note that the maximum penalty could be as much as $500,000 dollars. There seems to be some mitigating factors, the owner seems to be remorseful and most importantly, the Court will consider the fact that there are no prior convictions.

It is an isolated area, there is a Honda dealership and obviously that has people from the public that are going through and the submissions have been that the owner understands the fine implications and will ensure that this doesn’t happen a second time. The Court has to ensure that there is specific deterrence in relation to this as well as general deterrence and from that perspective, what I am going to do is, I am going to, given the submissions, I am going to have the fine of $30,000 rather than $40,000…” She did not waive the 25% victim fine surcharge that the parties had agreed upon.

I am satisfied that Her Worship erred in: (1) not advising counsel of her intention to depart from the joint submission and allowing them to address her concerns with it; (2) departing from a joint submission when it was not shown it was contrary to the public interest; (3) not providing reasons for departing from the joint submission. See R. v. Tsicos 2006 CanLII 33849 (ON CA) , [2006] O.J. No. 4041 and R .v. Cerasuolo , (2001) 2001 CanLII 24172 (ON CA) , 151 C.C.C.3d 445 . I do not find that she erred by failing to consider the danger to the workers involved in this matter.

It is true that her inquiries and decision focus on the danger to members of the general public, apart from the workers involved. However this was a very brief matter

and the facts just read in indicated that inspectors observed five workers employed by Lions Group actively involved in the demolition and learned that the demolition had begun five days earlier. On the facts being admitted, Her Worship commented that these are “… serious allegations.” She interjected with the prosecutor upon being advised that this was an “interesting case of an asbestos exposure” to have him indicate what the health risks were.

He stated “which doesn’t necessarily result in an injury right away, has been linked to lung cancer, asbestosis and other cancers…”; “that as a mitigating factor the Ministry of Labour came upon the demolition within five days so the exposure was for five days. However, one won’t know what the impact is of that exposure until many years down the road”. Implicit in that answer is that it was the exposure to the workers that had taken place for five days.

It would be unfair in my view to assume that her later inquiry with respect to the extent of the actual potential harm to the public, which is one of the explicit factors in R. v. Cotton Felts Ltd . to reflect in any way an oversight on her part with respect to the potential for harm to the workers which had been meaningfully discussed in the facts and submissions. Notwithstanding the legal errors in this matter set out earlier however, the primary consideration under s.116 of the Provincial Offences Act is whether or not the sentence imposed by the presiding justice was a fit one.

As repeatedly noted by our Court of Appeal “a fine is peculiarly in the discretion of the trial Judge – a discretion with which an appellate court should not lightly intervene” Counsel on appeal have provided me with a number of brief summaries of cases referred to in Annotated Occupational Health & SafetyAct ( Aurora: Canada Law Book, 1998) by R.B. Arnott and D.M. Exner.

The sentencing ranges appear to distinguish between the owner of an establishment who may or may not have any knowledge or skills to determine whether or not asbestos is in the facility and the employer in charge of the demolition work can, by virtue of it being a licenced undertaking, may be expected to have more expertise in the identification of listed substances and an ability to cease work once it is discovered to avoid any risk to their employees or the general public. The cases with respect to owners included the following: R. v. Boardwalk Equities (Canada) Inc. (Unreported, December 11, 2001, Ont. C.J.

London, Hurst, J.P.) A $28,000 fine was imposed on an owner who failed to inspect to establish whether any viable material contained asbestos. In R. v. Windsor-Essex Catholic District School Board (Unreported, January 26, 2005, Ont. C.J. Windsor, Hoffman, J.P.) A $35,000 fine was imposed on an owner who failed to ensure that the constructor of the project received a list of all designated substances present before entering into a contract. In R. v. First London East Development Inc. (Unreported, June 28, 2005, Ont. C.J.

London, Ryan-Brode, J.P.) A $30,000 fine was imposed on an owner for failing to furnish a copy of a list of designated substances to provide to their prospective constructor. In R. v. G. N. Developments Inc. (Unreported, August 14, 2008, Ont. C.J., Toronto, Bedard, J.P.) A fine of $20,000 was imposed on an owner of a building for failing to carry out an examination to determine whether asbestos containing material was likely to be handled, dealt with, disturbed or removed prior to tendering the work to be done in the building.

The Ministry has pointed out a news release from the Ministry of Labour where a Hanover Retirement Home owner failed to notify the Ministry of Labour of a known asbsestos removal project and was fined $50,000 in the Ontario Court of Justice in 2008. I note the culpability with respect to that offence may be seen to be significantly higher where the building owner is aware of the hazardous substance on the property and has work commence notwithstanding that knowledge. The sentencing judge’s decision in this matter is entitled to some deference. She clearly was considering all of the relevant factors in R. v.

Cotton Felts during the course of the submissions and her sentencing decision. She considered not only a number of mitigating factors relevant to this case including the lack of any prior record, the remedial procedures that had been put in place, and the remorse expressed by the company, but also considered the aggravating features including the need for general deterrence given that the fine imposed appears to be in the main stream of the sentences that are imposed on owners of properties in similar circumstances. I am not prepared to say that the sentence imposed by her was an unfit one.

And accordingly the appeal will be dismissed. P.L. Bellefontaine Justice