





CITATION:
Ontario
          (Labour) v. Black & McDonald Limited, 2011 ONCA 440



DATE: 20110609



DOCKET: C51467



COURT OF APPEAL FOR ONTARIO



Laskin, Rosenberg and Epstein JJ.A.



BETWEEN



Her Majesty
          The Queen In Right of Ontario

(Ministry of Labour)



Appellant



and



Black
        & McDonald Limited and Thomas G. Fuller & Sons Ltd.



Respondents



D.R. McCaskill, for the appellant



Don Rasmussen, for the respondent
          Thomas G. Fuller & Sons Ltd.

Norm Keith and Anna Abbott, for
          the respondent Black & McDonald Limited



Heard: December 6, 2010



On appeal from the judgment of
          Justice Denis J. Power of the Superior Court of Justice dated July 29, 2009,
          with reasons reported at (2009), 83 C.L.R. (3d) 44.



Laskin J.A.:



A.
Introduction

[1]

The
    issue on this appeal is whether the provincial offences appeal court judge erred
    in law in upholding the dismissal of three counts  counts 1, 2 and 4  in an
    information.  The case arises out of the
    death of an employee of the respondent Black & McDonald Limited at a
    construction site in Ottawa.

[2]

The
    City of Ottawa hired the respondent, Thomas G. Fuller and Sons Ltd., as the
    general contractor on a project to upgrade the Fleet Street Pumping
    Station.  Fuller retained Black &
    McDonald as a subcontractor.  Yves
    Blondin, a supervisor with Black & McDonald, was accidentally killed during
    the construction.

[3]

The
    Ministry of Labour laid charges under the
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1 against both Fuller and Black
    & McDonald in an eight count information, of which counts 6, 7 and 8 were later
    withdrawn.  Counts 1, 2 and 3 laid
    charges against Fuller; counts 4 and 5 laid charges against Black &
    McDonald.

[4]

After
    a seven day trial in the Ontario Court of Justice, the trial judge convicted
    Fuller on count 3 and Black & McDonald on count 5, and fined each
    respondent $85,000.  However, the trial
    judge dismissed counts 1, 2 and 4, holding that they were duplicitous and
    fail to disclose an offence, in clear and simple terms.  Each respondent appealed its conviction.  The Crown cross-appealed against the
    dismissal of counts 1, 2 and 4, and against the sentences.

[5]

On
    appeal, the appeal court judge set aside the convictions and entered
    acquittals.  He concluded that each
    respondent had made out the defence of due diligence.  The appeal court judge also dismissed the
    Crowns cross-appeal.

[6]

In
    respect of counts 1, 2 and 4, although he did not agree with all of the trial
    judges reasoning, the appeal court judge concluded that the trial judge had
    reached the correct result.  In the
    appeal court judges view, there was duplication or overlapping among all five
    counts and the trial judge had exercised his discretion reasonably in reducing
    the number of counts against each respondent to one.

[7]

The
    Crown sought leave to appeal under s. 131 of the
Provincial Offences Act
, R.S.O. 1990, c. P.33.  Armstrong J.A. denied leave to appeal from
    the acquittals on counts 3 and 5.  However, he granted leave to appeal from the dismissal of counts 1, 2
    and 4.  He wrote that the Crown has
    raised a question of law concerning the validity of the charges, the answer to
    which  is essential for the due administration of justice.

[8]

For
    the reasons that follow, I would allow the Crowns appeal, and order a new
    trial on counts 1, 2 and 4.

B.
Additional
    Facts

[9]

The
    Fleet Street Pumping Station provides clean drinking water to commercial and
    residential buildings in the Ottawa area.  Fuller was hired to do the main construction work at the station.  Its work included laying large pre-cast
    concrete pipe sections in the underground trenches in order to carry water from
    the pumping station.  Fuller had not
    performed this type of installation before, so it brought in Black &
    McDonald as a mechanical subcontractor.  Black & McDonald had some experience with this installation, and
    provided both workers and a supervisor.

[10]

A
    wooden framework was used as a brace to pull the pipe sections into place.  On the day of the incident  February 21,
    2006  Mr. Blondin went down in the trenches.  A vertical section of the wooden framework snapped.  A piece broke off, struck Mr. Blondin in the
    head and killed him.  The Crowns theory
    was that the wooden framework was not designed or constructed to resist the
    forces to which it was subjected.

C.
The Relevant Legislation and the Charges

(a)
The
    Legislation

[11]

Charges
    were laid under s. 23(1)(a), s. 23(1)(b), s. 25(1)(c) and s. 25(2)(h) of the
Occupational Health and Safety Act
and
    under s. 31(1)(a) of O. Reg. 213/91 under the Act.

[12]

Section
    23(1)(a) states:

A constructor shall
    ensure, on a project undertaken by the constructor that,

(a) the measures and procedures
    prescribed by this Act and the regulations are carried out on the project;

A general contractor  as Fuller
    was on the Fleet Street Pumping Station project  is a constructor under the
    Act.  A constructor has overall
    responsibility for safety at a construction project.

[13]

Section 23(1)(b) states:

A constructor shall
    ensure, on a project undertaken by the constructor that,

(b) Every employer and every worker
    performing work on the project complies with this Act and the regulations;

[14]

Section 25(1)(c) states:

An employer shall
    ensure that,

(c) The measures and procedures
    prescribed are carried out in the workplace;

Black & McDonald was an
    employer under the Act and it employed Mr. Blondin.

[15]

Section 25(2)(h) states:

(2) Without limiting
    the strict duty imposed by subsection (1), an employer shall,

(h) take every precaution reasonable in the
    circumstances for the protection of a worker;

[16]

O. Reg. 213/91 regulates construction projects.  Section 31(1) addresses project design and
    construction:

Every part of a
    project, including a temporary structure,

(a) shall be designed and constructed to support or resist all loads and forces to
    which it is likely to be subjected without exceeding the allowable unit stress
    for each material used;

(b)
The Counts

[17]

The Crown was granted leave to appeal the dismissals on
    counts 1, 2, and 4, but not the acquittals on counts 3 and 5.  However, to put counts 1, 2, and 4 in
    context, I list all five counts:

Count 1
 That Thomas G. Fuller and Sons Ltd. 
    did commit the offence of failing, as a constructor, to ensure that every part
    of a project was designed and constructed to support or resist all loads and
    forces to which it is likely to be subjected, contrary to sec. 31(1)(a) of
    Ontario Regulation 213/91, at a workplace located at 10 Fleet St., Ottawa,
    Ontario, Fleet Street Pumping station, contrary to section 23(1)(a) of the
Occupational Health and Safety Act
,
R.S.O. 1990 c. O.1
, as amended.

Count 2
 AND FURTHER THAT Thomas G. Fuller and
    Sons Ltd.  did commit the offence of failing, as a constructor, to ensure that
    every employer and every worker performing work on a project complied with the
    OHSA and its regulations, at a workplace located at 10 Fleet St., Ottawa,
    Ontario, Fleet Street Pumping station, contrary to sec. 23(1)(b) of the
Occupational Health and Safety Act
,
R.S.O. 1990, c. O.1
, as amended.

PARTICULARS: The defendant failed to ensure that
    an employer, Black and McDonald Limited, complied with the provisions of sec.
    31(1)(a) of Ontario Regulation 213/91.  A worker, Yves Blondin, was
    killed.

Count 3
 AND FURTHER THAT Thomas G. Fuller and
    Sons Ltd.  did commit the offence of failing, as an employer, to take every
    precaution reasonable in the circumstances for the protection of a worker, at a
    workplace located at 10 Fleet St., Ottawa, Ontario, Fleet Street Pumping station,
    contrary to sec. 25(2)(h) of the
Occupational
    and Safety Act
,
R.S.O. 1990, c.O.1
, as amended.

PARTICULARS:
The
    defendant failed to take the reasonable precautions of:

a) determining and/or limiting the forces
    and load applied to a wooden frame.

b) conducting a pre job hazard analysis.

A worker, Yves Blondin, was killed.

Count 4
 AND FURTHER THAT Black and McDonald
    Limited  did commit the offence of, failing, as an employer, to ensure that
    every part of a project was designed and constructed to support or resist all
    loads and forces to which it is likely to be subjected, contrary to sec.
    31(1)(a) of Ontario Regulation 213/91, at a workplace located at 10 Fleet St.,
    Ottawa, Ontario, Fleet Street Pumping station, contrary to section 25(1)(c) of
    the
Occupational Health and Safety Act
,
R.S.O. 1990, c. O.1
, as amended.

Count 5
 AND FURTHER THAT Black and McDonald
    Limited  did commit the offence of failing, as an employer, to take every
    precaution reasonable in the circumstances for the protection of a worker, at a
    workplace located at 10 Fleet St., Ottawa, Ontario, Fleet Street Pumping
    station, contrary to sec. 25(2)(h) of the
Occupational
    Health and Safety Act
,
R.S.O. 1990, c. O.1
, as amended.

PARTICULARS: The defendant failed to take
    the reasonable precautions of:

a) determining and/or limiting the forces
    and load applied to a wooden frame.

b) conducting a pre job hazard analysis.

A
    worker, Yves Blondin, was killed.

[18]

As is
    apparent, the subject matter of counts 1, 2, and 4 differs from the subject
    matter of counts 3 and 5.  Counts 1, 2
    and 4 all allege a failure to comply or a failure to ensure compliance with the
    design and construction requirement in s. 31(1)(a) of the Regulation.  Counts 3 and 5 allege a failure to take
    reasonable precautions for the protection of Mr. Blondin.

D.
Analysis

(a)
Reasons of the trial
    judge

[19]

The
    trial judge gave two reasons for dismissing Counts 1, 2, and 4.  First, the counts are duplicitous.  Second, the counts contain allegations that
    are convoluted, disingenuous, vague and ambiguous, and in some instances
    barely discloses an offence.  In short,
    according to the trial judge, counts 1, 2, and 4 fail to disclose an offence,
    in clear and simpler terms and [a]bsent particulars a defendant might be
    hard-pressed to decipher what it is they have done wrong.  In my view, each reason given by the trial
    judge amounts to an error of law.

(i)
The counts
    are not duplicitous

[20]

The
    trial judge appears to have confused a count that is duplicitous with a count
    that duplicates or overlaps another count.  A count is duplicitous if it offends the single transaction rule  that
    is, it joins separate and distinct offences in the same count: see
R. v. Papalia
, [1979] 2 S.C.R. 256;
R v. Selles
(1997), 34 O.R. (3d) 332
    (C.A.).  The single transaction rule is
    codified s. 25(2) of the
Provincial
    Offences Act
:

Each
    count in an information shall in general apply to a single transaction and
    shall contain and is sufficient if it contains in substance a statement that the
    defendant committed an offence therein specified.

[21]

Here,
    each count alleges a single offence.  No
    count offends the single transaction rule.  Neither Fuller nor Black & McDonald suggested otherwise.  Additionally, a number of counts in an
    information, each arising out of the same incident and even overlapping or
    duplicating each other, does not create a duplicitous charge.  A single incident may give rise to multiple
    charges.

[22]

However,
    even if the trial judge used the word duplicitous to try to express his view
    that the counts were repetitive, he erred in dismissing counts 1, 2 and 4 on
    that basis, as I will explain below.

(ii)
The counts
    disclose an offence in clear terms and with sufficient particulars

[23]

The
    trial judge was obviously concerned, from the way the charges were drafted,
    that Fuller and Black & McDonald would not know the case against them.  However, each count is drafted precisely in
    the wording of the relevant sections of the Act and s. 31(1)(a) of the
    Regulation.  Offences drafted in the words
    of a statute or a regulation are presumed to be valid.  For example, in
R. v. Rowley
(1972), 7 C.C.C. (2d) 230, at p. 232, a majority of
    this court upheld the validity of an information [h]aving regard to the fact
    that the information does charge an offence and charges that offence in the
    exact wording of the section of the Code under which it was laid.  See also
R.
    v. Milberg
(1987), 35 C.C.C. (3d) 45 (Ont. C.A.), at pp. 49-50.

[24]

A
    defendant is entitled to sufficient particulars of each charge.  Section 25(6) of the
Provincial Offences Act
states:

A count
    shall contain sufficient detail of the circumstances of the alleged offence to
    give to the defendant reasonable information with respect to the act or
    omission to be proved against the defendant and to identify the transaction
    referred to.

[25]

The
    five counts in the information complied with s. 25(6).  Some particulars were given.  Neither Fuller nor Black & McDonald asked
    for more particulars.  Neither claimed
    that it did not know what it was charged with or that any of the charges failed
    to disclose an offence.  The trial judge
    dismissed counts 1, 2, and 4 on his own initiative, and he was wrong to do so.

(b)
Reasons of the Appeal Court

[26]

The
    provincial offences appeal court judge exacerbated the trial judges
    errors.  He gave two reasons of his own
    for upholding the dismissal of counts 1, 2 and 4.  First, he said, there is definitely
    duplication and/or overlapping between all five counts.  Second, he said that the trial judge had
    exercised his discretion reasonably in reducing the number of counts to one
    against each defendant.  I do not agree
    with either reason.

(i)
The counts can overlap

[27]

I
    accept that some of these counts overlap with others; however, that does not
    make any of the counts objectionable.  A
    single incident may give rise to more than one charge.  As Cory J.A. said in
Milberg
at p. 49, It is manifest that many offences are capable of
    being committed in more ways than one under the provisions of the Code.

[28]

The
    trial judge should have adjudicated on all five counts and made findings on
    each of them.  If he convicted either or
    both defendants on all charges, he could then decide whether to conditionally
    stay one or more charges under the rule against multiple convictions:  see
R.
    v. Kienapple
, [1975] 1 S.C.R. 729;
R.
    v. Provo
, [1989] 2 S.C.R. 3.

(ii)
The appeal court judge erred in holding that
    the trial judge could collapse a valid information

[29]

The appeal court judge was wrong to say that the trial
    judge had discretion to reduce the number of counts to one count against each
    defendant.  No such discretion
    exists.  A trial judge cannot collapse an
    information by dismissing some of the counts simply because those counts may
    overlap with other counts arising out of the same incident.  To give a trial judge that discretion would
    improperly interfere with the Crowns discretion to lay the charges it deems
    appropriate.  The appeal court judge
    therefore erred in upholding the dismissals on counts 1, 2, and 4.

[30]

In this court, Fuller and Black & McDonald put
    forward two other bases to dismiss the appeal.  First, they argue that the trial ought to have applied
Kienapple
to counts 1, 2 and 4 because
    they were subsumed in the two more general counts, 3 and 5.  Second, they argue that their due diligence
    defence, which succeeded on counts 3 and 5 before the appeal court judge, is
    bound to succeed on counts 1, 2, and 4.  I do not accept either argument.

[31]

As the Supreme Court of Canada made clear in
Provo,
the application of the rule in
Kienapple
against multiple convictions
    does not result in an acquittal; it results in a conditional stay.  Therefore, assuming the trial judge had made
    findings of guilt on all five counts, even if he had applied
Kienapple
to counts 1, 2 and 4, at most
    he could have ordered a conditional stay.  He could not have acquitted the defendants or dismissed the charges
    against them.  And once the appeal court
    judge overturned the findings of guilt on counts 3 and 5, the conditional stays
    on counts 1, 2 and 4 would have been set aside and the findings of guilt on
    these counts restored.

[32]

The defendants due diligence defence succeeded on
    counts 3 and 5.  That does not necessarily
    mean a due diligence defence would succeed on counts 1, 2 and 4.  As I said earlier, counts 3 and 5 are aimed
    at different conduct from counts 1, 2 and 4.  The two sets of counts may overlap each other but they do not duplicate
    each other.  Counts 3 and 5 address the
    alleged failure of Fuller and Black & McDonald to take reasonable
    precautions at the construction site to protect Mr. Blondin.  Counts 1, 2, and 4 address alleged design and
    construction deficiencies in the pipe and wooden framework.  If Fuller and Black & McDonald have a due
    diligence defence to counts 1, 2 and 4, they must establish that defence at
    trial.

E.
Conclusion

[33]

The
    trial judge erred in law in dismissing counts 1, 2 and 4.  The appeal court judge erred in upholding the
    dismissals.  I would allow the Crowns
    appeal, set aside the dismissals and order a new trial on counts 1, 2 and 4.

John Laskin J.A.

I agree M. Rosenberg J.A.

I agree Gloria Epstein J.A.

RELEASED:  June 09,
    2011


