



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Scott Steel Ltd.,









2004 BCCA
            2




Date: 20040105





Docket: CA30639

Between:

Regina

Respondent

And

Scott Steel
      Ltd. and Ron Scott

Appellants












Before:



The Honourable
            Chief Justice Finch





(In Chambers)









F.G. Potts



Counsel for the Appellants





S.I. Macdonald



Counsel for the Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia





December 12, 2003





Place and
            Date of Judgment:



Vancouver, British Columbia





January 5, 2004







Reasons for Judgment of the Honourable Chief Justice
        Finch:

[1]

The
        appellants apply for leave to appeal the judgment of the Supreme Court
        of British Columbia pronounced 20 February 2003 allowing the Crowns
      appeal from the appellants acquittal in Provincial Court on 17 December
      2001.  The
        appellants were charged under the
Offence Act,
R.S.B.C. 1996,
        c.338 for breaches of the
Workers Compensation Act,
R.S.B.C.
        1996, c.492 and the Industrial Health and Safety Regulation, B.C. Reg.
        585/77, as the result of two fatalities and other workers injuries which
        occurred during a reconstruction project on a railway bridge owned by the
      C.N.R.

[2]

At
        trial, the learned Provincial Court judge held that the exercise of
      the jurisdiction of the provincial body had been ousted in favour of federal
        jurisdiction.  On the Crowns appeal to the B.C. Supreme Court the learned
        summary conviction appeal judge held that the trial judge erred in his
      conclusion concerning jurisdiction.  Tysoe J. held:

[16]  It was also
        an error for the trial judge to conclude that the jurisdiction of the
      provincial body was ousted in favour of federal jurisdiction because Scott
      Steel was
        working on a railway that formed the core of CNRs federal undertaking.
        This was also the case in
Construction Montcalm
, where a provincial
        construction company was working at the site of a federal undertaking but
        the Supreme Court of Canada nevertheless held that the construction company
        was subject to provincial wage legislation. The test of jurisdiction in
        respect of occupational health and safety is the same as the test in respect
        of labour relations, and it is not determinative whether the activities
        in question take place at a site owned or controlled by the federal or
      provincial enterprise.



[3]

He
      concluded:

[20]  In summary,
        the trial judge should have applied the test set out in
Northern Telecom
        No. 1
to the findings of fact he made and concluded that the provincial
        legislation dealing with occupational health and safety applied to Scott
        Steel. He erred in distinguishing the
Canada Labour Code
case by
        creating an unsupported distinction between legislation dealing with labour
        relations and legislation dealing with occupational health and safety.
      I allow the appeal and order a new trial.



[4]

On
        this application for leave to appeal under s.124(1) of the
Offence
        Act
the appellants must raise a ground of appeal that involves
        a question of law alone, show that the issue of law is important, and
        show further that the appeal has a reasonable prospect of success:
R.
      v. Hildebrand
(2000), 144 B.C.A.C. 156, 2000 BCCA 579 ¶7.

[5]

The
        issue which the appellants seek to raise on appeal is whether the summary
        conviction appeal court judge erred in law when he determined that the
        [Workers Compensation] Act applied to the appellants in the
particular
        circumstances of this case
.  They would seek to argue on appeal
        that it was an error to impose upon a single work site with an integrated
        work
        force including both C.N. and Scott Steel Ltd. employees, two separate
      and conflicting schemes of occupational health and safety.

[6]

The
        Crown opposes the application for leave to appeal on two grounds.  First
        it says such an appeal would be premature because the Provincial Court
        has not yet heard and determined the substance of the charges against the
        appellants.  Second, the Crown says there is no reasonable prospect of
        success on appeal because the ground alleged is dependant upon facts
      not supported by, and contrary to, the findings of the trial judge.

[7]

In
        my opinion, the test for leave to appeal to this court has not been met.  The
        appellants raised the jurisdictional issue at the commencement of the proceedings
        in Provincial Court.  The learned Provincial Court judge was of the view
        that he could not decide that issue without a proper factual foundation.  He
      said:

[3]   Prior to the
        commencement of the trial, objection was raised on behalf of Scott Steel
        that the provincial legislation did not apply to their work at Mile 8.3
        and therefore they could not be prosecuted for an alleged violation of
      that
Act
and its regulations.

[4]   Because counsel
        could not agree on sufficient facts, the Court was unable to make such
        a determination prior to the calling of evidence. The parties agreed
      to commence the trial without prejudicing the right of the applicant to
      renew
        his objection once the court had heard those witnesses
whose evidence
        would enable the court to make the findings of fact necessary to determine
      the jurisdictional issue.

[emphasis
      added]



[8]

His
        review of the evidence and his factual conclusions on the evidence are
      set out from paragraph 9 to 16 of his reasons.

[9]

I
        understand from what the learned Provincial Court judge said that the issue
        of whether the
Workers Compensation Act
and the Industrial
        Health and Safety Regulation apply is a question of mixed fact and law.  His
        legal conclusion depended on his findings of fact.  That is also clear
        from the way in which the issue sought to be raised has been framed by
      the appellants  in the particular circumstances of this case.

[10]

As
        the question raised is not one of law alone, the proposed appeal does not
        satisfy the criteria for leave to appeal set out in s.124(1) of the
Offence
      Act
.

[11]

Counsel
        for the appellants argue that it was unfair for the Crown to have an
      appeal as of right from the decision of the Provincial Court judge, whereas
      the
        appellants must now obtain leave to appeal the decision of the summary
        conviction appeal court judge.  The Crowns appeal arose as of right
        under s.109 of the
Offence Act
, incorporating relevant provisions
        of the
Criminal Code
, and appeal from acquittal.  However,
        if the Crown wished to appeal the decision of a summary conviction appeal
        court, it too would have to raise a ground that involved a question of
        law alone as required by s.124 of the
Offence Act
, again
      incorporating the relevant provisions of the
Criminal Code
.

[12]

The
      application for leave to appeal is dismissed.







The Honourable
Chief
      Justice Finch






