K-Line Maintenance and Construction Limited v. Ontario (Ministry of Labour), 2022 ONCJ 556

ONTARIO COURT OF JUSTICE CITATION: K-Line Maintenance and Construction Limited v. Ontario (Ministry of Labour), 2022 ONCJ 556 DATE: 2022 12 01 COURT FILE No.: Halton 1260-17-9333-00 B E T W E E N : K-LINE MAINTENANCE AND CONSTRUCTION LIMITED (APPELLANT) — AND — HIS MAJESTY THE KING IN RIGHT OF ONTARIO MINISTRY OF LABOUR (RESPONDENT) Before Justice Jennifer Campitelli Heard on October 21, 2022 Reasons for Judgment released on December 1, 2022 Ryan J. Conlin and Jeremy D.

Schwartz……counsel for K-Line Maintenance and Construction Limited Graeme Adams……counsel for His Majesty the King in right of Ontario (The Ontario Ministry of Labour, Immigration,Training and Skills Development) CAMPITELLI J.: [1] On July 6, 2016, workers at the Burlington Canal Lift Bridge used a rope attached to a machine to pull an aerial cable over thespan of a bridge. That rope broke.

The sudden release of tension caused the cable to rush backward over the span severely injuring Mr.Evan Brown, who was an employee of K-Line Maintenance and Construction Limited (K-Line). [2] As a result of this workplace accident, the Ministry of Labour (the Crown) charged K-Line with five separate counts under theOccupational Health and Safety Act. A trial was held before his Worship Justice of the Peace M. Barnes over thirteen days between June1, 2018, and December 4, 2018.

The Justice of Peace discharged K-Line with respect to Counts #5 and #6 on October 29, 2018.However, he convicted K-Line with respect to Counts #1 through Count #4 on July 16, 2019. Count #2, Count #3 and Count #4 wereconditionally stayed in accordance with the principles set out in R v. Kienapple (SCC), [1975]1 S.C.R. 729 (SCC) andK-Line was subsequently fined $150,000 plus the applicable victim fine surcharge with respect to Count #1. [3] The Appellant appeals the four convictions but does not appeal the sentence imposed.

Primarily, the Appellant argues that theJustice of the Peace erred by failing to provide adequate reasons for his decision, which resulted in K-Line being denied a meaningfulright to Appeal. For the reasons that follow, I will allow the appeal, set aside the four convictions and order a new trial. The reasonsprovided by the Justice of the Peace on July 16, 2019, were neither factually nor legally sufficient and resulted in a miscarriage ofjustice.

Given my ultimate conclusion with respect to the sufficiency of the reasons provided is determinative, I will not address the othergrounds of appeal raised by the Appellant.

The Legal Framework: [4] Reasons for judgment must be both factually and legal sufficient. Factual sufficiency is concerned with what the trial judgedecided and why. Factual sufficiency is ordinarily a very low bar, especially with the ability of the appellate court to review the trialrecord. Even if the trial judge expresses themselves poorly, an appellate court that understands the “what” and the “why” from the recordmay be able to communicate that understanding to the aggrieved party in its own reasons.

It will be a very rare case where neither theaggrieved party nor the appellate court can understand the factual basis of the trial judge’s findings: R .v. G.F. 2021 SCC 20 ,[2021] S.C.J. No. 20 (SCC) at para. 71 citing R .v. Sheppard 2002 SCC 26 , [2002] 1 S.C.R. 869 at para. 50 and 52. [5] However, although a trial judge’s reasons have to be assessed within the context of the trial record, this does not mean thatappellate courts simply engage in a reassessment of issues not resolved by the trial judge.

Where the trial judge’s reasoning is notapparent from the reasons or the record, it is not for the appellate court to substitute its own analysis for that of the trial judge: R .v.Black 2017 ONCA 599 , [2017] O.J. No. 3683 at para. 40 (CA) Justice Pardu citing R .v. Dinardo

(2008) SCC 24 at para. 32.[1] [6] Reasons for judgment are the primary mechanism by which judges account to parties and to the public for the decisions theyrender. Justice must not only be done but must be “seen” to be done. If judges fail to articulate the reasons for their actions, it is difficultto see how justice can be “seen” to be done. Where essential findings of fact and drawing of inferences is occurring, trial courts can onlyproperly be held accountable if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts:R .v.

Sheppard 2002 SCC 26 , [2002] 1 S.C.R. 869 at para. 15. Position of the Parties: [7] The Appellant argues that the reasons provided by the Justice of the Peace are wholly inadequate and have denied the Appellanta meaningful right to appeal. As such, there has been a miscarriage of justice in this matter. The Appellant submits it is impossible toglean from the reasons provided what evidence was considered, or what witnesses the trial Justice might have relied upon in reaching hisultimate determination.

Moreover, the Appellant stresses it is not clear from either the trial record or the reasons provided what legalanalysis the Justice of the Peace engaged in with respect to his assessment of the relevant issues. Simply put, with a view to all fourcounts where K- Line was convicted, the Appellant argues the reasons provided by the Justice of the Peace do not serve their requisitefunctional purpose.

They are neither factually nor legally sufficient and do not permit effective appellate review. [8] The Respondent stresses the reasons provided by the Justice of the Peace must be assessed within the context of the trial record.It urges the court to review the complete trial record in an effort to overcome any inadequacies it may identify with respect to the factualor legal sufficiency of the reasons provided. The Respondent argues that the reasons provided by the trial Justice with respect to all fourcounts provided K-Line with a meaningful right to appeal. There was no miscarriage of justice in this matter.

Finally, when asked toaddress how the reasons provided by the Justice of the Peace address transparency and public accountability, the Respondent submitsthe public is able to gain access to transcripts, exhibits and request copies of any legal argument filed should the reasons provided notprove adequate to that end. Analysis/Conclusion: [9] The reasons provided by the Justice of the Peace are factually and legally insufficient. Even when viewed in the context of thecomplete trial record, it is impossible to determine how the issues presented at trial were resolved.

The reasons are silent with respect toany evidence accepted, rejected, or even considered by the trial Justice. It is unclear whether the Justice of the Peace made any findingsof fact or drew any relevant inferences from the evidence presented; however, if he did, his reasons provide no transparency with respectto how such findings were arrived at. Finally, the reasons for judgment are completely silent with respect to any legal analysis the trialJustice may have engaged in with respect to the issues raised at trial.

Without any such reference, it is impossible for effective appellatereview to take place. [10] I have reminded myself that “bad reasons” are not an independent ground of appeal and that if the trial reasons do not explainthe “what” and the “why” but the answers to those questions are clear in the record, there will be no error: R .v. G.F. supra at para. 70(SCC) citing R .v. R.E.M. 2008 SCC 51 , [2008] 3 S.C.R. 3 at para. 38-40 and R .v. Sheppard supra at paras. 46 and 55 (SCC).

However, I am also mindful that I must not engage in a reassessment of the issues not resolved by the Justice of the Peace: R .v. Black supra at para. 40 (ONCA). The trial Justice’s reasoning is not apparent with respect to any of the four counts where he found K-Line guilty. As such, it is not appropriate for me, as the appellate court, to review the complete trial record and substitute my analysis of the relevant issues. Simply put, the reasons provided do not serve their requisite functional purpose. [ 11 ] Judges and Justices of the Peace are accountable to the public for the judgments they render.

The reasons provided by the Justice of the Peace in this instance lack the transparency and accessibility required for appropriate public oversight. When pressed on this issue, the Respondent argued that any lack of transparency is overcome by the public having access to the public record, copies of exhibits and any legal material produced to the court. I respectfully disagree. It is the responsibility of Judges and Justices of the Peace to fashion their reasons so that justice is “seen” to be done. There is no burden placed on the public in this regard, nor should there be.

The Respondent’s argument on this point undermines the fundamental principles on which our justice system is premised. [ 12 ] In the result, the reasons provided by the Justice of the Peace were both factually and legally insufficient. They denied the Appellant a meaningful appeal and resulted in a miscarriage of justice. It is “a very rare case” where neither the aggrieved party nor the appellate court can understand the factual basis for the trial judge’s findings: R .v. G.F supra at para. 71 . I find this is a very rare case. The appeal is allowed with respect to all four counts and a new trial is ordered.

Released: December 1, 2022 Justice Jennifer Campitelli