





CITATION:
R. v. Sheehan's
          Truck Centre Inc., 2011 ONCA 170



DATE: 20110302



DOCKET: M39591



COURT OF APPEAL FOR ONTARIO



Lang J.A. (In Chambers)



BETWEEN



Her Majesty the Queen



Responding Party



and



Sheehans Truck Centre Inc.



Moving Party



Daniel J.
Michaluk
, for the moving
          party



Rajesh
Dhir
and Jessica
Eisen
, for the responding party



Heard:
February 25, 2011



On a motion for leave to appeal the
          judgment of Justice Alan D. Cooper of the Ontario Court of Justice, dated
          December 22, 2010 allowing an appeal from the judgment of Justice of the
          Peace Paul
Macphail
of the Ontario Court of
          Justice, dated August 18, 2009.



ENDORSEMENT



[1]

The applicant seeks leave to appeal pursuant to s. 131
    of the
Provincial Offences Act
,
    R.S.O. 1990, c. P.33, which provides that leave to appeal may be granted on
    special grounds, upon any question of law alone, but that leave shall not be
    granted unless it is essential in the public interest or for the due
    administration of justice.

[2]

In this case, a worker was seriously injured when his
    co-worker reversed a truck over part of his body.  The workers employer, the applicant, was
    charged for its failure to provide a signaller to guide the trucks
    reversal.  The charge was laid pursuant
    to s. 25(1)(c) of the
Occupational Health
    and Safety Act
, R.S.O. 1990, c. O.1 for the breach of the prescription
    contained in section 56 of
Industrial
    Establishments
, R.R.O. 1990, Reg. 851.

[3]

Section 25(1
)(
c) of the
Occupational Health and Safety Act
requires
    an employer to ensure that the measures and procedures prescribed are carried
    out in the workplace.  Section 56 of the
    applicable
Regulation
governs all
    industrial establishments in Ontario.  It
    prescribes when a signaller must be provided:

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.

[4]

At first instance, the justice of the peace acquitted
    the applicant based largely on his interpretation that section 56 applied only
    if the vehicle was engaged as material handling equipment at the time of the
    accident.  On appeal, the Ontario Court
    of Justice appeal judge allowed the appeal, concluding that the legislation
    required a liberal interpretation to include the vehicle in question and that
    the legislative provision was not overbroad.  He found the applicant guilty.

[5]

The applicant argues that leave should be granted on
    two issues.  First, regarding the correct
    interpretation of s. 25(1
)(
c) of the
Occupational Health and Safety Act
, and
    section 56 of the
Industrial
    Establishments Regulation
.  In
    particular, the interpretive question focuses on the circumstances in which a signaller
    is required for a vehicle, mobile equipment, crane or similar material
    handling equipment.  Second, the
    applicant takes the position, arising from the proper interpretation, that
    section 56 is unconstitutionally overbroad.

[6]

In my view, the proper interpretation of this
    legislative provision raises issues important to the public interests interest
    in occupational safety at the workplace. Accordingly, I am satisfied that leave
    is essential in the public interest:  see
R. v.
Krukowski
(1991), 2 O.R. (3d) 155 (C.A.);
Ontario
    (Ministry of Labour) v. Hamilton (City)
(2002), 58 O.R. (3d) 37 (C.A.);
R. v. Rankin
(2007), 216 C.C.C. (3d) 481
    (Ont. C.A.).

[7]

Leave is granted on the two Grounds for Appeal set
    out in the applicants notice of motion for leave to appeal.

[8]

Costs of the leave motion, if any, are left to the
    panel hearing the appeal.

S.E. Lang J.A.


