



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Labour) v. Cobra Float
    Service Inc., 2020 ONCA 527

DATE: 20200825

DOCKET: C67448

Watt, Harvison Young and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen in Right
    of Ontario (Ministry of Labour)

Respondent

and

Cobra Float Service Inc.

Appellant

Nader Hasan and Caitlin Milne, for the
    appellant

Wes Wilson and Graeme Adams, for the
    respondent

Heard: June 22, 2020 by video conference

On appeal from judgment of Justice Ronald
    Minard of the Ontario Court of Justice, dated March 19, 2019.

Harvison Young J.A.:

[1]

On appeal at the Ontario Court of Justice, Cobra
    Float Service Inc. (Cobra) was convicted for an offence contrary to the
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1. Cobra argues that the appeal
    judge erred in summarily dismissing its application for a stay of proceedings, which
    it brought pursuant to s. 11(b) of the
Canadian Charter of Rights and
    Freedoms
, and before sentencing occurred. For the reasons that follow, I
    would dismiss the appeal.

A.

The Proceedings Below

[2]

In May 2013, Luis Pinto was tragically killed
    while unloading a large piece of equipment which fell over and crushed him. As
    a result, Mr. Pintos employer, Cobra, was charged in May 2014 with failing to
    ensure that equipment was not moved in a manner that endangered a worker,
    contrary to s. 25(1)(c) of the
Occupational Health and Safety Act
. After
    a five-day trial, Cobra was acquitted by a justice of the peace on the basis of
    a due diligence defence.

[3]

The Crown appealed the acquittal and was
    successful. In October 2018, the appeal judge entered a conviction and put the
    matter over for sentencing, pursuant to s. 121 of the
Provincial Offences
    Act
, R.8.0. 1990, c. P.33 (
POA
).

[4]

Before sentencing occurred, Cobra brought an
    application for a stay of proceedings, pursuant to s. 11(b) of the
Charter
.
    The Crown brought a motion for summary dismissal of Cobras s. 11(b)
    application.

[5]

In March 2019, the appeal judge dismissed
    Cobras s. 11(b) application. He found that as a statutory court, he had no
    inherent jurisdiction and there was no
POA
provision granting
    jurisdiction to hear a new
Charter
application on appeal. He stated:

there is clearly no express or implied power
    in either s. 116 or s. 121 [of the
POA
] for an appeal court to hear or
    grant relief on an issue that was not raised and ruled upon at the trial level.

[6]

The appeal judge also held that there is a
    general common law rule against determining a new issue on appeal. He found
    that the case at bar did not fit into any of the exceptions to this general
    rule.

[7]

To begin, he noted defence counsel was
    competent, and did not bring an s. 11(b) application at any point of the trial
    (despite numerous opportunities to do so, such as after the release of
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631 shortly before the trial
    began). In addition, he distinguished this case from the circumstances of
R.
    v. Bosley
, 1992 CarswellOnt 125 (Ont. C.A.), because the s. 11(b)
    application in this case could readily have been brought without in any way
    upsetting anyone. The appeal judge sentenced Cobra to a fine of $85,000.

[8]

Cobra sought leave to appeal from the conviction
    and the s. 11(b) dismissal, under s. 131 of the
POA
. This court denied
    leave to appeal from the conviction, but granted leave to appeal from the s.
    11(b) dismissal:
R. v. Cobra Float Service Inc.
(July 23, 2019),
    Toronto, M50411 (Ont. C.A.), at para. 6.

B.

Issues on Appeal

[9]

The issues on this appeal are narrow:

(1)

Did the appeal judge have the jurisdiction to consider the s. 11(b)
    application, brought before him for the first time?

(2)

If the answer to (1) is yes, did the appeal
    judge properly exercise his jurisdiction to dismiss the s. 11(b) application
    summarily?

[10]

For the reasons that follow, I would find (1) that
    that the appeal judge did have jurisdiction to consider Cobras s. 11(b)
    application, and (2) that he did not err in summarily dismissing the s. 11(b)
    application.

[11]

In light of those conclusions, it will be
    unnecessary to address the merits of the s. 11(b) application.

C.

ANALYSIS

(1)

Did the appeal judge have the jurisdiction to
    consider the s. 11(b) application, brought before him for the first time?

[12]

Cobra submits that the appeal judge erred in
    finding he had no jurisdiction over its s. 11(b) application. It notes that the
    test for
Charter
jurisdiction is set out in
R v. Conway
, 2010
    SCC 22, [2010] 1 S.C.R. 765, at para. 81, as follows:

a)

does the tribunal or court have power to decide
    questions of law; and

b)

if so, does any statute exclude
Charter
jurisdiction from the tribunal or courts powers?

[13]

In this case, Cobra submits that a statutory
    court convened under s. 121 of the
POA
clearly has powers to decide
    questions of law, and there is no statute excluding
Charter
jurisdiction
    from the
POA
courts powers. As such, the appeal judge had jurisdiction
    to hear the s. 11(b) application.

[14]

The respondent does not take issue with the
    appellants position that the appeal judge had the jurisdiction to hear the
    case. In fact, it argues that the reasons, read fairly and as a whole, indicate
    that the appeal judge was simply declining to exercise his discretion to
    entertain the application at that stage of the proceedings.

[15]

In my view, the appeal judge had jurisdiction to
    consider an s. 11(b) application on appeal. The appeal judge was sitting
    pursuant to s. 121 of the
POA
. He had the power to decide questions of
    law and the legislature has not clearly withheld authority to adjudicate the
Charter
.
    As such, pursuant to the test in
Conway
,

at para. 81, the
    appeal judge did have general jurisdiction to hear
Charter
issues that
    are properly brought before it. Further, this court has previously found that
    an appellant is entitled to raise the s. 11(b)
Charter
issue of
    post-hearing delay in an appeal to the Provincial Offences Appeal Court:
Orgaworld
    Canada Ltd. v. Ontario (Environment and Climate Change)
, 2014 ONCA 654, 319
    C.R.R. (2d) 335, at para. 2.

(2)

Did the appeal judge properly exercise his
    jurisdiction to summarily dismiss the s. 11(b) application?

[16]

As discussed above, the appeal judge had the
    jurisdiction to consider a
Charter
application. The crucial issue in
    this case arises from the fact that Cobra brought its s. 11(b) application for
    the first time on appeal.

[17]

The decision to hear a constitutional issue for
    the first time on appeal is discretionary:
Guindon v. Canada
, 2015 SCC
    41, [2015] 3 S.C.R. 3, at para. 20. Accordingly, the appeal judge had the
    discretion to decline to consider Cobras s. 11(b) application. That leads
    to the question whether the appeal judge properly exercised his discretion to
    dismiss the 11(b) application summarily.

[18]

Discretionary decisions attract a high level of
    deference on appeal. Appellate courts will only intervene where there is a
    clearly identifiable legal error, a material misapprehension of the relevant
    evidence, or a result that is clearly wrong in the sense that it is not
    defensible on the relevant law and facts:
Popack v. Lipszyc
, 2016 ONCA
    135, 129 O.R. (3d) 321, at para. 25.

[19]

Generally speaking, appeal courts will decline
    to hear new arguments on appeal, including constitutional arguments:
R. v.
    Roach
, 2009 ONCA 156, 246 O.A.C. 96, at para. 6.
As this court explained in
R. v. L.G.
, 2007 ONCA 654, 228
    C.C.C. (3d) 194, at para. 43, the reluctance to hear new issues on appeal stems
    from:

concerns about
    prejudice to the other side arising from an inability to adduce necessary
    responding evidence at trial, the lack of a sufficient record to make necessary
    findings of fact, and societys overarching interest in the finality of
    litigation.

[20]

The test for whether new issues should be
    considered on appeal is stringent. The discretion to hear a new constitutional
    issue on appeal should only be exercised exceptionally and never unless the
    challenger shows that doing so causes no prejudice to the parties:
Guindon
at para. 23. When determining whether to exercise this discretion, a judge
    should consider all of the circumstances, including the state of the record,
    fairness to all parties, the importance of having the court resolve the issues,
    and the broader interests of the administration of justice:
Guindon
,
    at para. 20.

[21]

It is also worth noting that this court has said
    the failure to move for a stay of proceedings, either before or at trial,
    would, in most cases, be fatal:
R. v. Rabba
(1991), 64 C.C.C. (3d)
    445 (Ont. C.A.), at p. 447.

[22]

Cobra argues that the appeal judge erred in
    declining to hear the s. 11(b) application. There was no waiver of s. 11(b)
    rights that warranted a summary dismissal. Rather, it submits that a
    significant portion of the delay prior to the end of the trial (10 months) was
    attributable to the trial court and the justice of the peace. This created an
    intractable dilemma, similar to that in
Bosley
, where it is
    understandable that defence counsel would not want to complain about s. 11(b)
    in the middle of the trial to the trial judge who, in its view, was partially
    to blame for the delay in issue. It was loathed to jeopardize an acquittal,
    which it obtained at trial.

[23]

As for post-verdict delay, Cobra argues they
    could not have raised those issues before the trial court, given it was
functus
at that point.

[24]

The appeal judge made a number of findings. He found
    that the defence had multiple opportunities to raise s. 11(b) concerns before
    the appeal, but did not do so. This led him to find that it was speculation to
    say Cobra would have raised s. 11(b) at trial, had Cobra been found guilty.
    In his view, experienced defence counsel made a deliberate decision not to
    raise s. 11(b) throughout the entire proceedings. These were findings of fact
    that attract a high level of deference.

[25]

I agree with the appeal judge that this case is
    distinguishable from
Bosley
, in which the unreasonable 17-month delay
    occurred entirely after the completion of evidence. Further, defence counsel in
Bosley
had repeatedly expressed concern about the delay accruing after
    the end of the evidence. Doherty J.A. called this one of those unusual cases
    where this court should entertain a s. 11(b) argument even though a stay was
    not sought prior to the completion of the proceedings below:
Bosley
,

at para. 23. This case was very different. As the appeal judge noted, the
    allegedly unreasonable delay did not entirely arise after trial, and the
    defence was silent about s. 11(b) until Cobra was convicted on appeal.

[26]

The appeal judge also addressed Cobras argument
    that it was in an intractable dilemma, given that the justice of the peace
    was a major source of the delay. Cobra submits that in these circumstances, as
    in
Bosley
, it is understandable that defence counsel was reluctant to
    bring an s. 11(b) application. The appeal judge rejected this argument, stating
    that:

the transcripts show a clear respect by
    counsel on both sides for the justice of the peace and vice versa. For lack
    again of a better phrase, their skin would not be that thin that they would
    refrain from bringing such a decisive motion simply because somebodys feelings
    might be hurt or upset.

[27]

There is no evidence on the record that allows
    this court to find that defence counsel decided not to raise s. 11(b) out of
    fear of punishment from the justice of the peace. For that reason, finding any
    fear of punishment is speculative and the appeal judge was entirely justified
    to reject the submission.

[28]

In any case, it would have been open to Cobra to
    bring a s. 11(b) application in response to the Crowns appeal from the acquittal.
    Cobra also could have requested that, if the judge was contemplating granting
    the appeal, then a new trial should be ordered to allow them to argue delay
    before a court at first instance. Despite having competent counsel, Cobra did
    not do either of these things.

[29]

Finally, Cobra also submitted that the general
    rule against raising issues, particularly
Charter
issues, for the
    first time on appeal should not apply here because the necessary record of
    dates, adjournments and full transcripts were before the appeal court as they
    are before this court. Even if that is the case, it does not follow that an
    appeal court is obliged to hear an appeal if the record is sufficient. This is
    merely one factor that may be considered. As already discussed, the rule against
    hearing new issues on appeal is stringent and the discretion to hear a new
    constitutional issue on appeal should only be exercised exceptionally and never
    lightly.

[30]

The Crown argues that had the delay issue been
    known to Crown counsel at trial, it would have asked different questions of a
    witness to build a suitable evidentiary record for the s. 11(b) application.
    The Crown also submits that having the s. 11(b) application heard on appeal
    truncates their rights of appeal, in that they would only be able to appeal on
    issue of law alone, with leave. As outlined earlier, the onus is on Cobra to
    show there is
no
prejudice in these circumstances.
    The fact that there is a complete record of timelines does not address this
    concern, and I am not satisfied that Cobra has met this burden.

[31]

The appeal judges findings were open to him on
    the record before him and I see no basis for interfering with his exercise of
    discretion not to entertain the s. 11(b) application, for the reasons he gave.
    I am not persuaded the appeal judge caused an injustice in summarily dismissing
    Cobras s. 11(b) application. As the appeal judge explained, there is nothing
    here to justify departing from the general rule that judges should decline to
    consider a new issue for the first time on appeal.

[32]

Given the high deference given to discretionary
    decisions, the stringent standard for hearing new issues on appeal, and the
    lack of exceptional circumstances that are necessary to meet this stringent
    standard, the appeal judge did not err in summarily dismissing Cobras s. 11(b)
    application.

D.

Disposition

[33]

For these reasons, I would dismiss the appeal.

Released: August 25, 2020

D.W.

A. Harvison Young J.A.

I agree David Watt J.A.

I agree S. Coroza J.A.


