





CITATION:
Ontario (Ministry of Labour) v. Sheehan's Truck
          Centre Inc.,
2011 ONCA 645




DATE: 20111017



DOCKET: C53487



COURT OF APPEAL FOR ONTARIO



Rosenberg, Cronk and Watt JJ.A.



BETWEEN



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




Respondent



and



Sheehans Truck Centre Inc.



Appellant



Daniel J. Michaluk, for the appellant



Raj Dhir and Sarah Loosemore, for the respondent



Heard:
June 30, 2011



On appeal from the conviction entered by Justice
          Alan D. Cooper of the Ontario Court of Justice, sitting as a summary
          conviction appeal court judge, dated December 22, 2010, reasons reported at
          2010 ONCJ 713, setting aside an acquittal entered by Justice of the Peace Paul
          Macphail, dated August 18, 2009.



Cronk J.A.:



[1]

The main issue on this appeal concerns the interpretation of s. 56 of
    an industrial workplace regulation known as
Industrial Establishments
,
    R.R.O. 1990, Reg. 851 (the Regulation), enacted under the
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1 (the Act).  Section 56 of the
    Regulation requires employers to use a signaller in certain circumstances
    when operating specified equipment in an industrial establishment.  The constitutionality
    of s. 56 of the Regulation is also raised as an alternative and secondary issue.

I.         Relevant Legislative
    Provisions

[2]

Section 25(1)(c) of the Act requires an employer to ensure that
    prescribed health and safety measures are carried out in the workplace.  Section
    56 of the Regulation is one of these measures.  It reads as follows:

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.

II.        Facts

[3]

The appellant, Sheehans Truck Centre Inc. (Sheehan), owns and
    operates a highway tractor truck sales business in Burlington, Ontario.  The units
    offered for sale are displayed in Sheehans parking lot.  In August 2006,
    Sheehan decided to expand its parking lot.  An external construction company
    was hired to complete the expansion work.

[4]

On the day in question, four Sheehan employees were directed by their
    supervisor to move a number of the truck units held for sale from one part of
    the parking lot to another to facilitate the paving work associated with the
    expansion.  One of these employees, Dennis Meek (Meek), attempted to move a
    25-foot long Volvo VNL 660 truck unit.  Although the truck unit was designed to
    attach to a cargo trailer, no trailer was attached to it at the time.  The cab
    of the truck unit had no rear window.

[5]

While Meek was attempting to back-up the truck unit, it became stuck on
    a mound of aggregate.  Another Sheehan employee, Joshua LaPenna (LaPenna),
    approached Meek and told him that he would clear the obstructing aggregate from
    behind the truck unit.  It is unclear whether Meek understood LaPennas offer
    of assistance.  In any event, LaPenna walked behind the truck unit and began to
    attempt to clear the obstruction.  Unfortunately, Meek then again reversed the
    truck unit and drove over LaPenna, causing him a serious pelvic injury.  As a
    result, LaPenna was hospitalized for several weeks and unable to work for a few
    months.

[6]

No signaller was involved at any point in directing Meeks operation
    of the truck unit.

[7]

Following the accident, Sheehan was charged with an offence under s.
    25(1)(c) of the Act, for failing as an employer to ensure that the signaller
    requirement under s. 56 of the Regulation was carried out in its workplace.  It
    defended the charge on two bases: (1) s. 56 of the Regulation did not apply to
    vehicles like the Sheehan truck unit; and (2) in the alternative, s. 56 of the
    Regulation violated s. 7 of the
Charter
on the grounds of overbreadth
    and gross disproportionality.

[8]

Sheehan was acquitted at trial.  The trial judge concluded that the Act
    is remedial public welfare legislation that is designed to guarantee a minimum
    level of protection for the health and safety of workers.  In this context, he
    held that s. 56 of the Regulation specifically addresses worker safety
as
    it relates to material handling
 (emphasis added).  In this sense, he
    concluded, s. 56 supports the broader protective purpose of the Act.

[9]

The trial judge next considered how the material handling provisions
    of the Regulation fit within this overall legislative scheme.  In his view, two
    factors indicated that material handling activity is a precondition to the
    application of s. 56 of the Regulation.  First, under the associated words
    rule of statutory interpretation, which requires that a listed statutory term
    be read in conjunction with associated listed terms, the words 
or
similar
    material handling equipment (emphasis in original) in s. 56 direct the reader
    of that provision to the common function of material handling.  Second, the
    placement of s. 56 in the Regulation as a whole, among safety regulations grouped
    under the heading Material Handling, also supports the conclusion that s. 56
    contemplates material handling activity.

[10]

The trial judge then addressed the meaning of material handling, a
    term that is not defined in the Regulation.  He concluded that the Sheehan truck
    unit was not a vehicle or material handling equipment within the meaning of
    s. 56 of the Regulation.

[11]

In the trial judges view, the use of a signaller is clearly desirable
    and would constitute a true best practice  where a vehicle is backing-up
    in circumstances where the operator does not have a full view of the intended
    course of travel.  However, the use of a signaller is not a requirement of the
Highway Traffic Act
, R.S.O. 1990, c. H.8 (the 
HTA
), the
    statute that governs most operations of a highway tractor type, nor has the
    legislature made it a general requirement for the safe reversing of a vehicle
    for the purposes of the Act or the Regulation.  In particular, given the
    intended place and purpose of the use of Sheehans truck unit, s. 56 did not impose
    a signaller requirement on Meeks operation of the unit.

[12]

Accordingly, the trial judge concluded that an offence under s. 25(1)(c)
    of the Act was not made out.  He therefore regarded it as unnecessary to
    address Sheehans attack on the constitutionality of s. 56 of the Regulation.

[13]

The Crown appealed, arguing that the trial judge erred in his
    interpretation of s. 56 of the Regulation.  It was the Crowns position that s.
    56 applies to all vehicles used in an industrial establishment, regardless of
    whether they constitute material handling equipment, when the operator of the
    vehicle has a blind spot preventing a full view of the vehicles intended path
    of travel.

[14]

The summary conviction appeal court judge (the SCAC judge) agreed.  In
    brief reasons on this issue (four paragraphs), he ruled that s. 56 of the
    Regulation does not require that a vehicle be engaged in the actual handling
    of materials at the time of a workplace accident.  Rather, in his opinion, s.
    56 is triggered where the vehicle at issue is intended to be used for this
    purpose and, further, this was the intended use of the Sheehan truck unit once
    a trailer was attached to it.  The SCAC judge also held that s. 56 of the
    Regulation does not violate s. 7 of the
Charter
and, hence, that it is
    constitutional.

[15]

The SCAC judge therefore set aside the acquittal entered by the trial
    judge and convicted Sheehan of failing to ensure that the signalling
    requirement established by s. 56 of the Regulation was carried out in its
    workplace, contrary to s. 25(1)(c) of the Act.  I will return to the SCAC
    judges reasoning in support of this decision later in these reasons.

[16]

Sheehan now appeals, with leave, to this court.

[17]

For the reasons that follow, I conclude that s. 56 of the Regulation does
    not apply to road vehicles in industrial establishments that are not actually
    or typically used to handle materials.  It follows, in my view, that the SCAC
    judge erred in his interpretation of s. 56 of the Regulation.  On the
    unchallenged findings of the trial judge, Sheehans truck unit was neither
    actually or typically used to handle materials.  Accordingly, an offence under
    s. 25(1)(c) of the Act was not made out.  In light of this conclusion, it is
    unnecessary to address Sheehans constitutional challenge to s. 56 of the
    Regulation.  I would therefore set aside the conviction entered by the SCAC
    judge, restore the decision of the trial judge, and enter an acquittal on the
    offence charged.

III.      Issues

[18]

As argued by the parties, there are two issues on this appeal:

(1)

Does s. 56 of the Regulation apply to a vehicle that does not
    constitute material handling equipment in an industrial establishment?

(2)

Does s. 56 of the Regulation offend s. 7 of the
Charter
on the
    basis of overbreadth or gross disproportionality?

IV.      Analysis

(1)

Statutory Interpretation Issue

(a)

The Regulation

[19]

Section 3 of the Regulation states that the Regulation applies to all
    industrial establishments.  The term industrial establishments is not
    defined under the Regulation.  However, it is defined in s. 1(1) of the Act as
    meaning an office building, factory, arena, shop or office, and any land,
    buildings and structures appertaining thereto.  Under this wide definition,
    there is no doubt that Sheehans business premises constituted an industrial
    establishment and that the Regulation, which is concerned with safety in
    industrial establishments, applied to Sheehans workplace.

[20]

Part I of the Regulation sets out various safety measures generally
    applicable to industrial establishments, including requirements relating to
    material handling.  Section 56 appears in Part I of the Regulation under the
    heading Material Handling.

[21]

The signaller requirement established by s. 56 is triggered by: (1) the
    operation of a vehicle, mobile equipment, crane or similar material handling
    equipment in circumstances where (2) the operator does not have a full view
    of the intended path of travel.

[22]

The parties accept that, by reason of the absence of a rear window in
    the cab of the Sheehan truck unit, Meek did not have a full view of the truck
    units intended path of travel when operating it in reverse.  Thus, the second
    precondition to the engagement of s. 56 was satisfied in this case.  The issue,
    therefore, is whether the truck unit constituted a vehicle...or similar
    material handling equipment for the purpose of s. 56, so as to satisfy the
    first precondition to the application of s. 56.  There is no suggestion that
    the Sheehan truck unit was an item of mobile equipment or a crane.

(b)

SCAC Judges Decision

[23]

The SCAC judges ruling that s. 56 of the Regulation applies to vehicles
    in industrial establishments that are intended for use in handling materials
    was based on the principle that public welfare legislation is to be interpreted
    broadly.  Relying on this courts decision in
Ontario (Ministry of Labour)
    v. Hamilton (City)
(2002), 58 O.R. (3d) 37, at paras. 16-17, leave to
    appeal refused, [2002] S.C.C.A. No. 146, the SCAC judge held that the
    Regulation is public welfare legislation and, consequently, that it is to be interpreted
    liberally [so] as to best assure the attainment of its objects.  In his view, the
    object of the Regulation is to protect vulnerable working men and women,
    especially when heavy equipment is involved, an objective with which the
    courts must not lightly interfere.  On this sole ground, he concluded that:

[Sheehans] truck...did not have to be engaged in
    the actual handling of materials at the time of the accident.  It is sufficient
    if it was intended to be used for this purpose with a trailer attached.  The
    intended purpose must take precedence over the literal, technical
    interpretation of the trial judge.

[24]

Sheehan argues that the SCAC judge erred by failing to consider the
    meaning of s. 56 of the Regulation in context, including in light of the
    safety-related purpose of the Act.  For the reasons that follow, I agree.

(c)

Governing Interpretive Approach

[25]

The Supreme Court of Canada has repeatedly endorsed the approach
    articulated by E.A. Driedger in
The Construction of Statutes
(Toronto:
    Butterworths, 1974), at 67, cited in Ruth Sullivan,
Sullivan on the
    Construction of Statutes
, 5th ed. (Markham: LexisNexis Canada Inc. 2008) at
    1, as the preferred modern method of statutory interpretation:

Today there is only one principle or approach,
    namely, the words of an Act are to be read in their entire context, in their
    grammatical and ordinary sense harmoniously with the scheme of the Act, the
    object of the Act, and the intention of Parliament.

See for example,
Re Rizzo & Rizzo Shoes Ltd.
, [1998]
    1 S.C.R. 27, at para. 21;
Bell ExpressVu Limited Partnership v. Rex
,
    2002 SCC 42, at para. 26.

[26]

This approach also governs the interpretation of a regulation: Pierre-André
    Côté,
The Interpretation of Legislation in Canada
, 5th ed. (Toronto:
    Carswell, 2000), at 24.  It requires an examination of the language of the
    provision, the context in which the language is used and the purpose of the
    legislation or statutory scheme in which the language is found:
Blue Star
    Trailer Rentals Inc. v. 407 ETR Concession Co.
, 2008 ONCA 561, at para. 23,
    leave to appeal refused, [2008] S.C.C.A. No. 434.

(d)    Nature of Legislative Scheme

[27]

As noted by the SCAC judge, protective legislation that is designed to
    promote public health and safety, like the Act and associated regulations, is
    to be generously interpreted in a manner that is in keeping with the purposes
    and objectives of the legislative scheme:
City of

Hamilton
at
    para. 16.  In addition, in the case of regulations, the words of the
    authorizing statute provide necessary and important interpretive context: see
    for example,
Bristol-Myers Squibb Co. v. Canada (Attorney General)
, 2005
    SCC 26, at para. 38.

[28]

This court has recognized that the Act is a public welfare statute, the
    broad purpose of which is to maintain and promote a reasonable level of
    protection for the health and safety of workers in and about their workplace. 
    This requires that the Act be interpreted in a manner consistent with its broad
    purpose, the promotion of worker safety: see
R. v. Timminco Ltd.
(2001),
    54 O.R. (3d) 21, at para. 22;
Ontario (Ministry of Labour) v. United
    Independent Operators Ltd.
2011 ONCA 33 (
UIOL
), at paras. 31 and
    64.

[29]

The SCAC judge was correct to approach the interpretation of s. 56 of
    the Regulation in a manner that advances the protective aims of the Act and the
    Regulation as a whole.  Both the Act and the Regulation are designed to
    safeguard workers in the workplace.  The Regulation focuses on worker safety in
    industrial establishments, as that term is defined under the Act.  In that
    context, s. 56 of the Regulation imposes a specific safety measure  a
    signaller requirement  that applies in defined circumstances in industrial
    establishments.

[30]

That said, consideration of the protective purposes of the legislative
    scheme is not the only consideration when attempting to ascertain the scope of
    s. 56 of the Regulation.   The Act seeks to achieve
a reasonable level of
    protection
(emphasis added) for workers in the workplace.  For obvious
    reasons, neither the Act nor the Regulation mandate or seek to achieve the
    impossible  entirely risk-free work environments.

[31]

The modern method of statutory interpretation requires that the words of
    s. 56 of the Regulation be interpreted in the entire context in which they are used
    and in accordance with their grammatical and ordinary sense, having regard to
    the purposes of the Regulation and the Act as a whole.  As I will explain, it
    is my opinion that by failing to conduct this contextual and purposive
    examination of s. 56 of the Regulation, the SCAC judge fell into error.

(e) 
      Meaning of Vehicle in

Section
    56 of the Regulation

[32]

Section 56 of the Regulation provides that a signaller must direct the
    operation of a vehicle, 
[w]here 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... (emphasis added).  None of the
    terms vehicle, material handling or material handling equipment is
    defined in the Regulation or in the Act itself.

[33]

Notwithstanding the absence of a definition of the word vehicle in the
    Regulation, I think it self-evident that it is susceptible of a broad
    construction according to its ordinary meaning.  However, since it appears in
    s. 56 in association with other listed means of moving goods and products,
    including similar material handling equipment, the associated words rule of
    statutory interpretation requires that vehicle be interpreted in conjunction
    with the associated listed words.  As observed by the trial judge, under this
    rule, the reader is invited to look for a common feature among the terms
    listed.
[1]
The application of this rule, as well as a plain reading of the phrase a
    vehicle, mobile equipment, crane or similar material handling equipment,
    suggests that vehicle as employed in s. 56 means a vehicle that falls within
    the general class of material handling equipment.

[34]

The Crown argues that the term material handling equipment as used in
    s. 56 modifies only the immediately preceding word crane, and not the word
    vehicle.  I disagree.

[35]

In my view, the use of the words or similar in s. 56, in conjunction
    with the term material handling equipment, is a compelling indication that
    the provision is intended to apply only to those vehicles that constitute
    material handling equipment, and not to all vehicles used in an industrial
    establishment.

[36]

Moreover, s. 56 is also directed at the load of a vehicle.  The use
    of the word load in connection with vehicle also implies that the vehicles
    contemplated by s. 56 are those that handle goods or other materials.

[37]

Apart from the text of s. 56 itself, this interpretation is reinforced
    by the context in which s. 56 appears in the Regulation.  As noted by the trial
    judge, s. 56 forms part of various safety regulations set out in Part I of the
    Regulation, under the heading Material Handling.  This heading is a relevant
    and proper guide to the interpretation of s. 56: see
Law Society of Upper
    Canada v. Skapinker
, [1984] 1 S.C.R. 357, at pp. 376-77;
Re African Lion
    Safari & Game Farm Ltd. and Kerrio
(1987), 59 O.R. (2d) 65 (C.A.), at
    p. 73.

[38]

Most, although arguably not all, of the provisions under the Material
    Handling part of the Regulation concern some aspect of material handling
    performed in an industrial setting.  The placement of s. 56 in that part of the
    Regulation that concerns Material Handling further suggests that a vehicle
    under s. 56 means a vehicle that is also material handling equipment.

[39]

Finally, in my view, this interpretive conclusion also accords with
    logic and common sense.  If, as the Crown urges, the word vehicle in s. 56 is
    interpreted to mean all vehicles, rather than only vehicles that constitute
    material handling equipment, the scope of the signaller requirement under s. 56
    would be broad indeed.

[40]

In particular, given the wide definition of industrial establishments
    set out in s. 1(1) of the Act, an expansive interpretation of vehicle in s.
    56 of the Regulation would result in the application of the signaller
    requirement to vehicles of any type, in a host of industrial settings, as long
    as the operators view of the vehicles intended path of travel is partially or
    wholly obscured.  For example, the term industrial establishments includes
    shops and offices and adjacent lands.  If the Crowns interpretation of
    vehicle were to be accepted, the signaller requirement under s. 56 would
    apply to passenger cars operated in reverse in such everyday locations as
    shopping centres and plazas or many office building parking lots, so long as
    the drivers view is even partially obscured.

[41]

I have considerable difficulty in accepting that s. 56 of the Regulation
    is intended to have such sweeping application.  I agree with Sheehans
    contention that this expansive view of the scope of s. 56 would impose a
    signaller requirement in circumstances far beyond those that are reasonably
    necessary to protect workers from safety hazards in industrial settings.  In my
    opinion, if the legislature had intended s. 56 to have such a wide reach, this
    intention would have been expressed in clear and unambiguous language.

[42]

Based on his reasons, I am unable to conclude that the SCAC judge
    considered the meaning of the word vehicle in s. 56 of the Regulation in the
    context of the language of s. 56 itself and the Regulation as a whole.  In
    light of the considerations set out above, I agree with the trial judge that,
    properly read, vehicle in s. 56 means vehicles that come within the class of
    material handling equipment.

(f) 
       Meaning of Material Handling in

Section
    56 of the Regulation

[43]

The phrase material handling appears to have received little judicial
    consideration, either generally or in the specific context of s. 56 of the
    Regulation. Moreover, the legislative history of the Regulation and of s. 56
    provides no insight into its intended meaning.

[44]

In contrast to the SCAC judge, who did not expressly advert to this
    issue in his reasons, the trial judge grappled directly with the meaning of
    material handling as it appears in s. 56 of the Regulation.  He concluded
    that, given the place and purpose of its use, the Sheehan truck unit was not
    material handling equipment as contemplated by s. 56.

[45]

I agree for several reasons.  First, the trial judge made the following
    pertinent factual findings concerning the Sheehan truck unit: (1) the truck
    unit was a highway tractor unit; (2) the primary and by far most common use
    of the truck unit was to convey attached trailers on public highways; (3) the
    trailers would often be laden with materials; and (4) the purpose of the
    unit, therefore, was the transport of goods and materials.

[46]

These findings are not challenged on this appeal.

[47]

The trial judge next considered whether the transport of goods and
    materials on public highways fell within the ambit of material handling as
    contemplated by s. 56 of the Regulation. In doing so, he turned to
Federal
    Express (Re)
, [2004] C.L.C.A.O.D. No. 1, a decision of an appeals officer
    under the
Canada Labour Code
, R.S.C. 1985, c. L-2 (the Code).

[48]

The issue in
Federal Express (Re)
was whether courier delivery
    vans constituted motorized materials handling equipment under the
Canada
    Occupational Health and Safety Regulations
, S.O.R./86-304, (the COHSR),
    enacted under the Code.  Section 14.16 of the COHSR required that motorized
    materials handling equipment used in areas occupied by employees be equipped
    with a horn or other similar audible warning device that automatically
    operates while [the equipment] travels in reverse.  In
Federal Express (Re)
,
    two courier companies were charged with contraventions of the Code and the
    COHSR because delivery vans owned by them were operated in reverse in areas
    occupied by employees when the vans were not equipped with the requisite back-up
    warning devices.

[49]

The COSHR contained a specific definition of materials handling
    equipment:

Materials handling equipment means equipment,
    including its supporting structures, auxiliary equipment and rigging devices,
used
    to transport, lift, move or position persons, materials, goods or things
and includes mobile equipment used to lift, hoist or position persons, but does
    not include an elevating device that is permanently installed in a building. 
    [Emphasis added.]
[2]

[50]

In addition, the COSHR expressly excluded motor vehicles operated on
    public roads from the back-up warning device requirement, thus differentiating
    between road vehicles and materials handling equipment.  Other provisions of
    the COSHR also appeared to distinguish between road vehicles and materials
    handling equipment.

[51]

Thus, the legislative scheme considered in
Federal Express (Re)
differed in several material respects from the legislative framework under
    scrutiny in this case. Unlike the Regulation, the COHSR contained a specific
    definition of the term materials handling equipment, an express exclusion of
    motor vehicles operated on public roads from the back-up warning device
    requirement, and other provisions that distinguished road vehicles from
    material handling equipment.

[52]

The trial judge in this case, while alive to the different legislative
    schemes at issue, viewed the analysis and interpretive conclusion expressed in
Federal
    Express (Re)
regarding the meaning of materials handling equipment under
    the COHSR as persuasive and sensible.

[53]

I agree that
Federal Express (Re)
, while concerned with a
    different legislative regime, is instructive in identifying certain of the
    general characteristics of material handling.  In particular, the appeals officer
    in
Federal Express (Re)
noted, at paras. 33-34, that the English and
    French language versions of the definition of materials handling equipment in
    the COSHR suggested that materials handling has the following characteristics:

-

[the] purpose of handling  and its French equivalent manutention  is
    ... to manoeuvre persons, materials, goods or things, to transfer them, to
    change their positioning relatively [sic] to a previous one;

-

materials handling equipment is used when what needs to be moved is
    too heavy or too bulky to be moved manually;

-

the handling of materials is carried out as part of a larger process, as
    one of the steps that has to be accomplished in order to successfully complete
    the whole process; and

-

the handling of materials takes place in an enclosed area of the work
    place, for example, a warehouse, a terminal, a wharf, a tarmac, as opposed to
    an open area like  a public road.

[54]

The appeals officer in
Federal Express (Re)
also held that the
    purpose of the back-up warning device requirement under s. 14.16 of the COSHR
    was to deal with equipment that handles materials within a work place, as
    opposed to equipment that transports materials from an employers to a clients
    work place (para. 55).  In contrast, the sole purpose and function of the delivery
    vans in question was to move, carry or transport materials, persons, things or
    goods from one location to another, utilizing public roads.  Their operation for
    this purpose was subject to the prescriptions of the
Motor Vehicles Act
of the province where they are being operated (paras. 42 and 43-48).

[55]

The appeals officer concluded, at para. 58:

I will add that any summary review of the
    literature or of other legislation on the subject of materials handling equipment
    is further evidence that Part XIV of the [COSHR] was not intended to cover
    motor vehicles like courier vans and trucks.  It is clear that the designation
    of material handling equipment refers to what is commonly known as powered
    industrial trucks, that is mobile, power-driven vehicles that are used to
    carry, push, pull, lift, stack and tier material.  And among them we find lift
    trucks, electric pallet trucks, elevated order pickers, low-lift platform
    trucks, cantilever trucks, counter-balance front/side loader trucks and
    single-side loader rider trucks, to name but a few.

[56]

The focus of the appeal officers reasoning in
Federal Express (Re)
was on the place and purpose of use of the applicable vehicles, in the context
    of the specific language of the definition of materials handling equipment
    set out in the COSHR.

[57]

In this case, on the undisputed findings of the trial judge, the primary
    purpose of the Sheehan truck unit was the transport of goods and materials, via
    a trailer, on public highways. As the trial judge indicated, when used for this
    purpose, the operation of the Sheehan truck unit was subject to the provisions
    of the
HTA
.  In light of these findings, it cannot be said that the
    Sheehan truck unit possessed the attributes of material handling identified in
Federal
    Express (Re)
, set out above.

[58]

In addition, the Sheehan truck unit did not possess many of the features
    of material handling suggested by ordinary and specialized dictionary
    definitions of that term.

[59]

The French language version of s. 56 of the Regulation reads:

Si lopérateur
dun véhicule
,
    de matériel mobile, dune grue
ou dun appareil de manutention similaire
na pas une vue dégagée de la trajectoire prévue de lappareil ou de sa charge,
    il doit se faire guider par un signaleur qui est une personne compétente et qui
    est posté :

a)

bien en vue de lopérateur;

b)

bien en vue de la trajectoire prévue de

lappareil et de sa
    charge;

c)

à lécart de la trajectoire prévue de lappareil
    et de sa charge.

[Emphasis added.]

[60]

The term used in place of material handling in the French language
    version of s. 56 is manutention.
Le Nouveau Petit
    Robert
defines manutention as, [m]anipulation,
    déplacement manuel ou mécanique de marchandises, en vue de lemmagasinage, de
    lexpédition et de la vente.
This defines it as the
    movement of merchandise for the purpose of warehousing, shipment and sale.

[61]

A similar
definition is
found in Louis Ménard et al,
Dictionnaire de la comptabilité et de la
    gestion financière: anglais-français avec index français-anglais
(Montréal:
    Institut canadien des comptable agréés, 1994), which defines  manutention
    as:

Déplacement manuel ou mécanique de
    produits, de matières ou de marchandises, en général sur une faible distance,
    associé aux opérations dapprovisionnement, de fabrication, de montage,
    demmagasinage, dexpédition ou de vente.

[62]

This definition describes manutention as the
    movement of products, generally across a short distance (en général sur une
    faible distance),
associated with supply
,
manufacturing
, installation,
warehousing
, shipping or sale operations (associé aux opérations
    dapprovisionnement, de fabrication, de montage, demmagasinage, dexpédition
    ou de vente).

[63]

An
even
more
specific
    definition is found
in the
Quebec Governments
Grand dictionnaire terminologique
(2006), online: Office québécois de la langue française
    <http ://www.granddictionnaire.com/btml/fra/r_motclef/index800_1.asp>.
It defines manutention as follows:

Action de déplacer
    automatiquement, mécaniquement ou manuellement, à laide dappareils de
    manutention, des matières, des produits en cours de fabrication ou des produits
    finis
sur

une faible distance
et
généralement à lintérieur
.



Il ne faut pas confondre le terme
manutention
avec les termes
manipulation et transport
. En effet, le terme
manipulation
se limite aux déplacements effectués dans laire dun poste de travail,
    tandis que le terme
transport
correspond à des déplacements qui se font
sur
    une distance plus importante
que dans le cas de la manutention et
généralement
    à lextérieur
.

[Emphasis added.]

[64]

This definition specifies that manutention involves moving materials
    or products over a short distance (sur une faible distance) and generally in
    an interior setting (généralement à lintérieur). It also notes that manutention
    is distinct from the French term transport.  In contrast to manutention,
    transport refers to movements over a longer distance (sur une distance plus
    importante) and generally outside (généralement à lextérieur).

[65]

The Oxford English Dictionary also off
ers a
    brief and narrow definition of materials handling.  It defines the term as
    the movement and storage of materials
in a factory
 (emphasis added):
Oxford
    English Dictionary
, 2nd ed., vol. IX (Oxford, Clarendon Press, 1989), at p.
    465.

[66]

Taken as a whole, the above-quoted definitions suggest that
    manutention or material handling in the context of industrial
    establishments usually: (1) is undertaken in an interior or enclosed setting,
    such as a factory or plant; (2) extends over short distances; and (3) forms
    part of a broader industrial process involving the movement of materials or
    products for such purposes as supply, manufacturing, installation, warehousing,
    shipment and sale.

[67]

On the trial judges findings, these characteristics did not apply to
    the Sheehan truck unit.  In its condition on Sheehans lot on the day of the
    accident, the truck unit did not have the capacity to handle materials  no
    trailer was attached to it.  Even with a trailer attached, the intended purpose
    of the truck unit was to transport goods and materials on public highways, that
    is, in exterior settings over potentially considerable distances.  The trial
    judge held that the Sheehan truck unit was just one item of Sheehans truck inventory
    offered for sale to the public, after which it would almost certainly be
    employed on public roadways, with only minor use of private roadways.  Before
    this court, the Crown accepted that Sheehan is not in the business of selling
    trailers.

[68]

Further, as noted by the trial judge, there was no evidence at trial
    that Sheehan used the truck unit or intended to use it for anything other than
    sale to the public. In particular, there was no evidence that the Sheehan truck
    unit was engaged in or intended for any processing, manufacturing, material
    movement or other [non-sales-related] activity.  The trial judge summarized
    this aspect of the record in this fashion:

In fact, no evidence was presented to the court of
    any material handling activity by Sheehans, either actual activity or activity
    possible or contemplated, that would have utilized the Volvo truck (or any
    other truck in the sales yard inventory).

[69]

These findings and observations are amply supported by the evidential
    record.

(g)    Conclusion

[70]

In these circumstances, I conclude that s. 56 of the Regulation does not
    apply to road vehicles that are not actually or typically engaged in the
    handling of materials.  In light of the trial judges factual findings,
    above-described, I also agree that the Sheehan truck unit did not constitute a vehicle...or
    similar material handling equipment within the meaning of s. 56 of the
    Regulation.  The requisite element of material handling activity, necessary
    to trigger the application of s. 56, was not demonstrated in this case.  Accordingly,
    s. 56 of the Regulation did not apply to Sheehans truck unit on the day in
    question and the Crown failed to establish the
actus reus
of the offence
    charged under s. 25(1)(c) of the Act.

(2)

Constitutionality
    of Section 56

of
    the Regulation

[71]

In light of my conclusion that s. 56 of the Regulation did not apply to
    the Sheehan truck unit, it is unnecessary for the disposition of this appeal to
    consider Sheehans challenge to the constitutionality of s. 56 of the
    Regulation.

V.        Disposition

[72]

For the reasons given, I would allow the appeal, set aside the
    conviction entered by the SCAC judge and restore the verdict of acquittal
    entered by the trial judge.

[73]

Sheehan seeks costs of the appeal in the sum of $18,000 (its actual
    partial indemnity costs are said to approximate $78,000) on the ground that the
    issues on appeal raised matters of general public interest and importance.  The
    Crown resists an adverse costs award since costs awards against the Crown on
    the basis of public interest considerations are rare and exceptional and may
    only be justified in narrow circumstances that the Crown says do not apply
    here.

[74]

This appeal raised matters of general public importance concerning the
    interpretation of s. 56 of the Regulation.  Litigation involving the public
    interest raises unique policy considerations that may, in exceptional cases,
    justify a departure from ordinary costs rules: see
Victoria (City) v. Adams
,
    2009 BCCA 563, at para. 181.  Moreover, on the motion granting leave to appeal
    to this court in
UIOL
, Doherty J.A., in chambers, held that the
    financial burden arising from the reasonable legal costs of an appeal in what
    is essentially public interest litigation need not be borne by the successful
    party in a proceeding that the Crown properly views as the vehicle for clearing
    up a matter of statutory interpretation of wide application.  This is such a
    case.

[75]

The costs sought by Sheehan are reasonable.  It was successful at trial
    and, again, before this court.  In all the circumstances, I conclude that a
    costs award against the Crown in the modest amount of $18,000 is appropriate
    and I would so order.

RELEASED:

OCT 17 2011                                            E.A.
    Cronk J.A.

EAC                                                            I
    agree M. Rosenberg J.A.

I
    agree David Watt J.A.





[1]
See
Sullivan on the Construction of Statutes, supra
, at pp. 227-230.



[2]
The emphasized words in this quote also appear, in virtually identical
    language, in the definitions of material handling equipment set out in the
Aviation
    Occupational Health and Safety Regulations
, S.O.R./2011-87, s. 8.1, the
Oil
    and Gas Occupational Safety and Health Regulations
, S.O.R./87-612, s. 15.1,
    and the
Maritime Occupational Health and Safety Regulations
,
    S.O.R./2010-120, s. 209.


