r v. Sheehan's Truck Centre Inc., 2010 ONCJ 713

Ministry of Labour v. Sheehan's Truck Centre Inc. [Indexed as: Ontario (Ministry of Labour) v. Sheehan's Truck Centre Inc.] 104 O.R. (3d) 182 2010 ONCJ 713 Ontario Court of Justice, A. Cooper J.

December 22, 2010 Charter of Rights and Freedoms -- Fundamental justice -- Regulation which requires use of trained signaller when operator of commercial vehicle does not have full view of intended path of travel not overly broad -- Requirement that signaller and driver be given basic safety training not unduly onerous for employer -- Trial judge erring in holding that Regulation violating s. 7 of Charter -- Canadian Charter of Rights and Freedoms, s. 7 -- Industrial Establishments, R.R.O. 1990, Reg. 851, s. 56 . Employment -- Occupational health and safety -- Offences --

Section 56 Regulation requiring use of signaller where operator of commercial vehicle does not have full view of intended path of travel --

Section 56 under heading "Material Handling" -- Trial judge erring in acquitting employer of failing to comply with s. 56 on basis that truck was not engaged in actual handling of material at time of accident -- Liability triggered by fact that truck was intended to be used for material handling -- Regulation designed to protect workers and should be liberally construed to achieve legislative object -- Industrial Establishments, R.R.O. 1990, Reg. 851, s. 56 . The defendant was charged with failing as an employer to ensure that the measures and procedures prescribed by s. 56 of R.R.O. 1990, Reg. 851 were carried out at a workplace, contrary to s. 25(1) (

c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 . The defendant was a truck dealership. As its parking lot was being paved, employees were directed to move trucks from one area to another. One employee was moving an industrial truck which was designed to be attached to a trailer. No trailer was attached at the time. A signaller was standing behind the truck, removing debris in the truck's path and was not visible to the driver, assisting the move. The driver of the truck backed over the signaller. He suffered serious injuries.

Section 56 of R.R.O. 1990, Reg. 851 requires the use of a signaller who is stationed in full view of the operator with a full view of the intended path of travel of the vehicle where the operator does not have a full view of the intended path of travel. Neither the driver nor the signaller had received the basic training from their employer necessary to ensure that [page183] they each knew that the signaller was required to be in the full view of the driver and that the signaller should not have stood in the intended path of the truck.

The trial judge noted that s. 56 appears under the heading "Material Handling". As the truck was not engaged in material handling at the time of the accident, the trial judge acquitted the defendant. The Ministry appealed. Held, the appeal should be allowed.

Section 56 of R.R.O. 1990, Reg. 851 does not violate s. 7 of the Canadian Charter of Rights and Freedoms . It is not overbroad, arbitrary or grossly disproportionate, and does not impose an unduly onerous requirement on an employer. Minimal training would have taught both the driver and the signaller that the driver should not have reversed until the signaller was in full view and that the signaller was not standing in the intended path of the truck. The trial judge erred in his

interpretation of s. 56. The defendant's truck did not have to be engaged in the actual handling of materials at the time of the accident. It was sufficient that it was intended to be used for that purpose with a trailer attached. The intended purpose had to take precedence over the literal, technical

interpretation of the trial judge in order to ensure that the legislative purpose of protecting workers was achieved. APPEAL by the Ministry from an acquittal by Macphail J. on August 18, 2009. Cases referred toAfrican Lion Safari & Game Farm Ltd. v. Kerrio (1987), 1987 CanLII 4079 (ON CA) , 59 O.R. (2d) 65, [1987] O.J. No. 194, 37 D.L.R. (4th) 80, 19 O.A.C. 205, 1 C.E.L.R. (N.S.) 197, 3 A.C.W.S. (3d) 260 (C.A.); Cochrane v. Ontario (Attorney General) (2008), 92 O.R. (3d) 321, [2008] O.J.

No. 4165, 2008 ONCA 718 , 179 C.R.R. (2d) 310, 242 O.A.C. 192, 170 A.C.W.S. (3d) 508, 61 C.R. (6th) 374, 301 D.L.R. (4th) 414; Federal Express (Re), [2004] C.L.C.A.O.D. No. 1 (Beauchamp); Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC) , [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36, 58 D.L.R. (4th) 577, 94 N.R. 167, J.E. 89-772, 24 Q.A.C. 2, 25 C.P.R. (3d) 417, 39 C.R.R. 193, 15 A.C.W.S. (3d) 121; Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 CanLII 16893 (ON CA) , 58 O.R. (3d) 37, [2002] O.J. No. 283, 155 O.A.C. 225, 52 W.C.B. (2d) 484 (C.A.); R. v. Sault Ste.

Marie (City), 1978 CanLII 11 (SCC) , [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59, 85 D.L.R. (3d) 161, 21 N.R. 295, 40 C.C.C. (2d) 353, 7 C.E.L.R. 53, 3 C.R. (3d) 30, 2 W.C.B. 321; R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC) , [1991] 3 S.C.R. 154, [1991] S.C.J. No. 79, 84 D.L.R. (4th) 161, 130 N.R. 1, J.E. 91-1635, 49 O.A.C. 161, 67 C.C.C. (3d) 193, 38 C.P.R. (3d) 451, 8 C.R. (4th) 145, 7 C.R.R. (2d) 36, 30 A.C.W.S. (3d) 660, 14 W.C.B. (2d) 208 Statutes referred to Canada Labour Code, R.S.C. 1985, c. L-2 [as am.] Canadian Charter of Rights and Freedoms, ss. 1 , 7 Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52 ,

(1) Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, ss. 64 , 70 Occupational Health and Safety Act, R.S.O. 1990, c. O.1, ss. 25(1) (c), 66(3) Provincial Offences Act, R.S.O. 1990, c. P.33, s. 121 , (

b) Rules and regulations referred to R.R.O. 1990, Reg. 851 (Occupational Health and Safety Act), Rules 45 , 56 Authorities referred to Ontario Ministry of Transportation, The Official MTO Truck Handbook (Ontario Ministry of Transportation) Sullivan, Ruth, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008) [page184] Rajesh Dhir and Evan C. Schiller, for appellant Ministry of Labour.

Daniel J. Michaluk, for respondent Sheehan's Truck Centre Inc. A. COOPER J.: -- Introduction [ 1 ] Sheehan's Truck Centre Inc. was charged that on or about the 18th day of October 2006, in the City of Burlington, it failed as an employer to ensure that the measures and procedures prescribed by s. 56 of Industrial Establishments, R.R.O. 1990, Reg. 851 , as amended, were carried out on a workplace located at 4320 Harvester Road, Burlington, Ontario, contrary to s. 25(1) (

c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 , as amended. The evidence was heard on May 22 and June 15, 2009 and on August 18, 2009, the charge was dismissed. The learned justice found it was not necessary to rule on a Canadian Charter of Rights and Freedoms application brought by the respondent. Case Background [ 2 ] Sheehan's Truck Centre Inc. is a family-owned truck dealership located at 4320 Harvester Road in Burlington.

At the time in question, its five-acre parking lot was being paved and certain employees were directed to move trucks from one area to another. [ 3 ] Employee Dennis Meek attempted to move a Volvo industrial truck, approximately 25 feet long, which was designed to attach to an industrial trailer, and this is commonly referred to as a tractor-trailer unit. He did not have a specialized "Class A" licence to drive this vehicle. The truck had a sleeping cab in it. Sheehan's did not sell trailers, so none was attached to the truck. Normally, a trailer would carry some type of goods or material.

Another employee, Joshua Lapenna, was at the rear of the truck and assisting Meek in moving it. The truck had no rear window and as Meek was trying to move it in reverse, it became stuck in a pile of gravel or aggregate. No one was in full view of Mr. Meek to act as a signaller when the truck was being reversed. [ 4 ] Mr. Lapenna told Mr. Meek he was going to clear the gravel away from the back of the truck and asked him to wait a second, which Meek acknowledged by nodding his head. Lapenna testified that he had hoped Meek had heard him and wouldn't move the truck.

Lapenna was attempting to clear the [page185] debris when Meek reversed the truck and drove over him. He suffered serious pelvic injuries and was hospitalized for approximately one and one half months, but eventually was able to return to work about three months after the accident. [ 5 ] Section 25(1) (

c) of the Occupational Health and Safety Act of Ontario states as follows: Duties of employers 25(1) An employer shall ensure that, . . . . . (

c) the measures and procedures prescribed are carried out in the workplace[.] [ 6 ]

Section 56 of R.R.O. 1990, Reg. 851 reads as follows: 56. Where the operator of a vehicle, mobile equipment, crane or similar material handling equipment does not have a full view of the intended path of travel of the vehicle, mobile equipment, crane or similar material handling equipment or its load, the vehicle, mobile equipment, crane or similar material handling equipment shall only be operated as directed by a signaller who is a competent person and who is stationed, (

a) in full view of the operator; (

b) with a full view of the intended path of travel of the vehicle, mobile equipment, crane or similar material handling equipment and its load; and (

c) clear of the intended path of travel of the vehicle, mobile equipment, crane or similar material handling equipment and its load. [ 7 ] Immediately above s. 45 of the Regulation is the heading "Material Handling", which also applies to s. 56 , supra. [ 8 ] The evidence is clear that Mr. Lapenna was not always in full view of the driver and was not clear of the intended path of travel of the vehicle. The learned trial judge decided that even though the signaller requirement had been breached by Sheehan's, the truck had to be engaged in material handling at the time of the accident.

He concluded that "the tractor unit, in the use for which it was held and employed by Sheehan's, does not constitute a vehicle, as contemplated by s. 56 , nor was it in the use or purpose for which it was held by Sheehan's, material handling equipment, as described by that section". Grounds of Appeal Argued Against acquittal [ 9 ] The trial judge erred in his

interpretation of Rule 56 of R.R.O. 1990, Reg. 851 . [page186] The Standard of Review Provincial Offences Act [ 10 ] [ Provincial Offences Act, R.S.O. 1990, c. P.33 ] 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. Strict liability [ 11 ] The charges before the court are public welfare offence allegations, which fall in between mens rea offences and absolute liability

offences. Once the prosecution proves the actus reus beyond a reasonable doubt, the onus shifts to the defendant to prove, on a balance of probabilities, that he took all reasonable care, or acted with due diligence, applying a reasonable man test. See R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC) , [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59, 40 C.C.C. (2d) 353. [ 12 ] The defence of due diligence has been incorporated into the Occupational Health and Safety Act in s. 66(3) , which is as follows: Defence 66(3) On a prosecution for a failure to comply with, (a) subsection 23(1); (b) clause 25(1)(b), (

c) or (d); or (c) subsection 27(1), it shall be a defence for the accused to prove that every precaution reasonable in the circumstances was taken. Position of the Appellant [ 13 ] The Ministry of Labour submits that the learned justice of the peace erred in his

interpretation of the Regulation, and thereby committed an error in law. [ 14 ] The appellant relies on ss. 64 and 70 of the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F : [page187] Rule of liberal

interpretation 64(1)

An Act shall be interpreted as being remedial and shall be given such fair, large and liberal

interpretation as best ensures the attainment of its objects. Same (2) Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act. . . . . . Reference aids 70. Tables of contents, marginal notes, information included to provide legislative history, headnotes and headings are inserted in

an Act or regulation for convenience of reference only and do not form part of it. [ 15 ] The appellant referred to the decision of Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 CanLII 16893 (ON CA) , 58 O.R. (3d) 37, [2002] O.J. No. 283 (C.A.), at paras. 16 and 17 : 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. This principle has been recognized and applied in several recent decisions of this court. In R. v. Timminco Ltd. (2001), 2001 CanLII 3494 (ON CA) , 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. Position of the Respondent [ 16 ] Sheehan's Truck Centre Inc. argues that Macphail J. was correct in his

interpretation of the Regulation and that the acquittal ought to stand. It maintains that the heading "Material Handling" governed the

interpretation of the

section we are concerned with, so that if the vehicle in question was not engaged in material handling at the time of the accident, then the requirement for a signaller has no application. [ 17 ] The respondent maintains that a reasonable degree of worker safety can be achieved without a signaller requirement. It submits that a signaller in the case at bar would not have made any difference at all, because the accident was caused by a communication error between Mr. Meek and Mr. Lapenna. [page188] Statutory

Interpretation [ 18 ] It is further submitted that the Regulation in question fails to define "vehicle" and the heading "Material Handling" means that a vehicle such as Sheehan's must be engaged in such handling before the mandatory requirement for a signaller comes into effect. [ 19 ] Because "vehicle" is not defined, there is an ambiguity which, as a matter of statutory

interpretation, must be resolved by reference to the Ejusdem Generis rule, or Associated Words rule, as it is otherwise known. The respondent cited Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008), by Ruth Sullivan, Professor of Law at the University of Ottawa. Professor Sullivan described the rule as follows: The associated words rule is properly invoked when two or more terms linked by "and" or "or" serve an analogous grammatical and logical function within a provision. This parallelism invites the reader to look for a common feature among the terms.

This feature is then relied on to resolve ambiguity or limit the scope of the terms. Often the terms are restricted to the scope of their broadest common

denominator. [ 20 ] The respondent says that "Material Handling" is the common feature. It referred to African Lion Safari & Game Farm Ltd. v. Kerrio (1987), 1987 CanLII 4079 (ON CA) , 59 O.R. (2d) 65, [1987] O.J. No. 194 (C.A.). At para. 27 of that decision, the court stated: The recent decision of the Supreme Court of Canada in Law Society of Upper Canada v. Skapinker (1984), 1984 CanLII 3 (SCC) , 9 D.L.R. (4th) 161, 11 C.C.C. (3d) 481, [1984] 1 S.C.R. 357, has removed all doubt about the use of headings in the

interpretation of statutes. It is established by that decision that headings can be used as an aid to

interpretation especially where the language of the statute is ambiguous. There is strong support for this conclusion in the textbooks: see Driedger, Construction of Statutes, 2nd ed. (1983), at pp. 138-41 and at p. 147; Craies on Statute Law, 7th ed. (1971), at pp. 207-10; Bennion, Statutory

Interpretation (1984), at p. 590, and Cote, The

Interpretation of Legislation in Canada (1984), at pp. 44-5. [ 21 ] The appellant argues that there is no need to resort to external aids of statutory construction, because there is no ambiguity. Secondly, the Occupational Health and Safety Act and its regulations are concerned with the public welfare and, as such, are to be given a liberal

interpretation. To give undue importance to a heading and an overly technical

interpretation to such legislation not only defeats the intent of the legislature, but is also contrary to the public interest in protecting workers. [ 22 ] The respondent also relies upon the decision of Federal Express (Re), [2004] C.L.C.A.O.D. No. 1 (Beauchamp). This was an administrative law case heard by M. Beauchamp, an appeals officer acting under the Canada Labour Code, R.S.C. 1985, c. L- 2 and dealing with federal health and safety regulations concerning [page189] delivery vans reversing and what warning equipment was required.

The issue was whether the vans were "materials handling" equipment and it was decided that they were not, so that a horn or similar audible warning device that automatically operates when travelling in reverse was not required. [ 23 ] Justice of the Peace Macphail made reference to this case in his judgment. [ 24 ] The appellant submitted that this case is not binding and it deals with federal legislation, not the Ontario legislation in question.

It points out that the federal legislation is worded differently and contains a separate scheme for vehicles and one for material handling, unlike the Ontario Regulation. Inconsistent Driver Safety Standards [ 25 ] The respondent introduced into evidence The Official MTO Truck Handbook (Ontario Ministry of Transportation) and called Angela Goodhand as a defence witness. She is employed as an area supervisor for a company, employed by the Ontario Ministry of Transportation, which tests drivers seeking licences, including Class "A" licences.

She not only conducts such tests but also trains examiners for her company. [ 26 ] Ms. Goodhand testified that a

section of the Handbook deals with backing or reversing trucks, and there is no requirement that a signaller be used. [ 27 ] The appellant responded by pointing out the opening words in the Handbook state that it is only to be used as a guide. It does not have the force of law. The constitutional argument [ 28 ] The respondent at trial filed an application under the Canadian Charter of Rights and Freedoms . Had Macphail J. held that a signaller was required by Sheehan's, the respondent's alternative defence was that the requirement in the Regulation was unconstitutional.

This is because it violated s. 7 of the Charter and was therefore of no force and effect under s. 52 [of the Constitution Act, 1982] and not saved by s. 1 [of the Charter]. The application was fully argued at trial, but Macphail J. declined to rule on the application because of his decision to dismiss the charge. [ 29 ] The respondent was entitled to, and did, raise the Charter argument on appeal, to which the appellant responded. [ 30 ] The relevant Charter provisions are as follows: 1.

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [page190] . . . . . 7.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ Constitution Act, 1982 ] 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [ 31 ] A corporate entity is not entitled to rely on s. 7 as a matter of course. See Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC) , [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36.

However, it can do so defending itself in penal proceedings: R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC) , [1991] 3 S.C.R. 154, [1991] S.C.J. No. 79. [ 32 ] The respondent submits, in the alternative, that if the learned trial judge erred in his

interpretation of s. 56 of R.R.O. 1990, Reg. 851 , then the

section is constitutionally overbroad and grossly disproportionate and violates s. 7 of the Charter . The argument is, in effect, that this requirement unnecessarily interferes with the business operations of the respondent. It challenges the need for a signalling provision that applies to the circumstances the government has previously endorsed as safe. This goes back to the earlier submissions concerning The Official MTO Truck Handbook and the testimony of Angela Goodhand. [ 33 ] The Ontario Court of Appeal in Cochrane v. Ontario (Attorney General) (2008), 2008 ONCA 718 (CanLII) , 92 O.R. (3d) 321,

[2008] O.J. No. 4165 (C.A.) dealt with a constitutional challenge by a dog owner to Ontario's pit-bull legislation. The court had this to say about the constitutional principles which are concerned with in the present case [at para. 18]: Overbreadth is a term used to describe legislation that, as drafted, covers more than is necessary to attain the legislature's objective and thereby impinges unduly upon a protected right or freedom.

A law is unconstitutionally overbroad if it deprives an individual of "life, liberty and security of the person" in a manner that is "grossly disproportionate" to the state interest that the legislation seeks to protect. Such a law is said to be "arbitrary" and offends "the principles of fundamental justice" and therefore violates s. 7 of the Charter . A law that restricts the rights guaranteed by s. 7 is also "arbitrary" unless it is grounded in a "reasoned apprehension of harm". The onus of proving that the law is "arbitrary" or "grossly disproportionate" lies on the applicant: see R. v.

Malmo-Levine, 2003 SCC 74 (CanLII) , [2003] 3 S.C.R. 571, at paras. 78 , 133, 143. . . . . . To determine whether a law is "grossly disproportionate" to the legislative objective, one must consider the nature and gravity of the alleged Charter infringement in relation to the importance of the legislature's objective. As the application judge correctly observed, the right to own a dog is not protected by [page191] the Charter.

The applicant is able to invoke s. 7 only because of the possibility that a court might impose a penalty of imprisonment for violation of the Act, an unlikely prospect absent blameworthy conduct by an owner leading to personal injury. This possibility of imprisonment must be weighed against the risk that pit bulls pose to public safety. The test of gross disproportionality clearly incorporates a substantial measure of deference to the legislature's assessment of the risk to public safety and the need for the impugned law: R. v.

Heywood, 1994 CanLII 34 (SCC) , [1994] 3 S.C.R. 761, at p. 793; Clay, at para. 40. [ 34 ] If the applicant meets the onus upon it to establish arbitrariness and gross disproportionality, then the onus shifts to the Crown under s. 1 of the Charter to attempt to show that the law is demonstrably justified in a free and democratic society. [ 35 ] The appellant submits that the issue to be resolved is whether or not the deprivation of s. 7 is disproportionate to the goals of the legislature.

As well, there is no constitutional right to reverse vehicles at commercial establishments without a signaller, just as there is no right to own a pit bull. [ 36 ] It further submits that deference must be paid to the means selected by the legislature. The purpose of the Regulation is about public safety and the danger of reversing trucks without proper safeguards. Additionally, there was no evidence that the respondent company or Mr. Sheehan, the driver, relied on the MTO Handbook in not using a signaller. If they had, then they could rely on the defence of officially induced error.

Analysis [ 37 ] It is my view that s. 56 of R.R.O. 1990, Reg. 851 is constitutional and does not breach s. 7 of the Charter . The obvious intent of the provincial legislature was to protect workers from the dangers imposed by commercial vehicles being reversed.

The requirement for a signaller to be a competent person and to be stationed in full view of the operator, with a full view of the intended path of travel of the vehicle, and clear of the intended path of travel of the vehicle, is not an unduly onerous requirement for an employer. [ 38 ] Some protective measures cost considerable sums of money, but the signaller requirement would only require some training of its employees by the employer. In the present case, had Sheehan's trained Mr. Meek and Mr. Lapenna according to the Regulation, the accident could have easily been avoided. Mr.

Lapenna could have acted as the signal person and he would not have been in the path of the vehicle. Mr. Meek would have been trained not to reverse the truck until Mr. Lapenna was in full view of him and out of the intended path of travel. [ 39 ] It is my finding that the Regulation is not overbroad, arbitrary or grossly disproportionate. [page192] [ 40 ] With great respect, I find that Justice of the Peace Macphail erred in law when he interpreted the Regulation.

I agree with the appellant, the Ministry of Labour, that public welfare legislation such as this is to be interpreted liberally as to best assure the attainment of its objects. [ 41 ] Working men and women are a very vulnerable class of persons, especially when heavy equipment is involved. The Ontario legislature recognized the need to protect them, and the courts must not lightly interfere with this objective. [ 42 ] The Court of Appeal of this province has clearly recognized the value of this legislative goal and has clearly stated how such public welfare legislation is to be interpreted.

See Ontario (Ministry of Labour) v. Hamilton (City), supra. [ 43 ] In view of the above, it is my conclusion that the truck of the respondent did not have to be engaged in the actual handling of materials at the time of the accident. It is sufficient if it was intended to be used for this purpose with a trailer attached. The intended purpose must take precedence over the literal, technical

interpretation of the trial judge. [ 44 ] Having found that the respondent was obliged in law to comply with the signaller condition of the Regulation, I find as a fact that it was not duly diligent in attempting to prevent an accident such as this involving the reversing of one of its trucks. There was no training of its employees in this regard and no supervision by the employer at the time of the accident. Conclusion [ 45 ] Pursuant to s. 121 (

b) of the Provincial Offences Act , supra, I hereby allow the appeal, set aside the verdict of acquittal and enter a finding of guilt for the offence as charged. Appeal allowed.