



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Labour) v. Quinton
    Steel (Wellington) Limited, 2017 ONCA 1006

DATE: 20171220

DOCKET: C61897

Pardu, Huscroft and Fairburn JJ.A.

BETWEEN

Her
    Majesty the Queen in Right of Ontario

(Ministry of Labour)

Appellant

and

Quinton Steel (Wellington) Limited

Respondent

Wes Wilson, for the appellant

Jeremy Warning, for the respondent

Heard: September 19, 2017

On appeal from the decision of Justice Norman S. Douglas
    of the Ontario Court of Justice, dated November 5, 2015, upholding the
    acquittal entered on December 17, 2014 by His Worship Justice of the Peace Thomas
    A. Stinson.

Huscroft J.A.:

OVERVIEW

[1]

Martin Vryenhoek died when he fell from a
    temporary welding platform while working at the factory of his employer, the
    respondent Quinton Steel. Quinton Steel was charged under s. 25(2)(a) of the

Occupational Health and Safety Act
, R.S.O. 1990, c. O.1 (
OHSA
)
    with failing to inform, instruct and supervise a worker to protect the health
    or safety of the worker, and under s. 25(2)(h) with failing to take every
    precaution reasonable in the circumstances for the protection of a worker.

[2]

Both charges were dismissed following trial
    before a justice of the peace. The Crown did not appeal dismissal of the charge
    under s. 25(2)(a). The Crown appealed dismissal of the count under s. 25(2)(h),
    but the appeal was dismissed by a summary appeal conviction judge. Leave to
    appeal to this court was granted by Feldman J.A.

[3]

The Crown submits that the trial justice erred
    in law by failing to adjudicate the s. 25(2)(h) charge as laid. In particular,
    the Crown says that the trial justice did not make the findings of fact necessary
    to determine whether it was reasonable to require that guardrails be installed
    on the platform Vryenhoek used while welding. The respondent submits that the
    trial justice and appeal judge properly adjudicated the charge and that the
    Crown is attempting to use s. 25(2)(h) to establish a stricter standard
    governing the hazard of falling than the regulations require for working at
    height.

[4]

As I will explain, the decisions below are based
    on a misunderstanding of the interaction between the
OHSA
and its regulations.
    I would allow the Crowns appeal and order a new trial.

BACKGROUND

[5]

The facts in this matter are not in dispute.

[6]

Quinton Steel operates a custom steel
    fabrication business, which involves the assembly of large steel components for
    industrial applications. Welding is a considerable part of its work. Quinton
    Steels facility is an industrial establishment as defined in the
OHSA
and, accordingly, the
Industrial Establishments,
R.R.O. 1990, Reg. 851,
regulation under
    the
OHSA
(the 
Industrial Establishments Regulation
) applies to
    it.

[7]

Martin Vryenhoek was a finishing metal welder at
    Quinton Steel. On the day of the accident, he was involved in fabricating a
    large piece of steel equipment called a slide. Platforms were required in
    order for him to reach the height required to do the welding. In accordance
    with longstanding practice at Quinton Steel  some 17 years  a temporary
    platform was set up for Vryenhoek to use. The platform consisted of two
    eight-foot planks laid side by side on steel A-frame end pieces. The width of
    the platform was 19.5 inches. The platform was set up at a height of 6 feet, 6
    inches above the ground. It did not have guardrails and no fall arrest
    equipment was utilized.

[8]

Vryenhoek was wearing a welding helmet that
    covered his face. It had speed glass, which was clear and allowed forward
    vision, but became opaque once welding began in order to provide eye
    protection. He had a full view of his surroundings only when the helmet was
    lifted from his face.

[9]

Vryenhoek was completing an eight-foot weld. He
    would move along the platform by walking sideways, slowly, and would know that
    he had reached the end of the platform only by feeling the tip of the A-frame
    with his foot. Some employees would weld temporary bumpers or guards to the piece
    they were welding in order to alert them to their position at the end of the
    platform and serve as a protective device. However, whether and how bumpers
    were used was a matter of an individual welders discretion.

[10]

Quinton Steel did not require the use of bumpers
    and did not require the use of fall protection for platforms under nine feet in
    height. Following the accident, it implemented a rule requiring guardrails on three
    sides of any work surface over two feet high. A Ministry of Labour inspector subsequently
    made an order under s. 13 of the
Industrial Establishments Regulation

requiring this practice.

THE DECISIONS BELOW

(1)

The Justice of the Peace

[11]

The charge under s. 25(2)(h) was particularized
    on consent at the commencement of the trial to allege that Quinton Steel
    failed to take the reasonable precaution of installing guardrails at the open
    sides of a raised wood platform. The trial justice made the following
    findings:

·

Vryenhoek was not required to wear fall
    protection equipment under s. 85 of the
Industrial Establishments Regulation
because he was working at a height of less than three metres.

·

Construction Projects
,
    O. Reg. 213/91, (the 
Construction Projects Regulation
),
another regulation
    under the
OHSA,
requires fall protection for work at three metres or
    more in height, and guardrails if a worker is exposed to a potential fall of
    2.4 metres or more, but that regulation did not apply to the work at Quinton
    Steel.

·

Section 13(1)(b)(i) of the
Industrial
    Establishments Regulation
requires a guardrail to be in
    place at the open side of a raised floor, mezzanine, balcony, gallery,
    landing, platform, walkway, stile, ramp, or other surface, regardless of
    height. The respondent did not face charges under s. 13.

[12]

The trial justice found that the requirements of
    ss. 13 and 85 of the
Industrial Establishments Regulation
were
    contradictory and difficult to reconcile. He considered that if s. 13 requires
    guardrails to be installed on any raised surface, no matter how high, its
    scope would be breathtaking. The trial justice noted that this interpretation
    would be inconsistent with the
Construction Projects Regulation
, which
    requires guardrails only for work at a height of 2.4 metres or more. Why, he
    asked, would there be a need for fall protection equipment in s. 85 of the
Industrial
    Establishments Regulation
if guardrails were required regardless of
    height?

[13]

The trial justice reconciled what he considered to
    be the obvious contradictions on guardrail requirements by limiting the scope
    of the guardrail requirement in s. 13 of the
Industrial Establishments
    Regulation
,
so that it applies to fixtures  things attached to the
    premises of the building or factory itself  but not to chattels. Applying this
    interpretation, he found that the guardrail requirement in s. 13 did not apply
    to the unattached A-frame platform from which Vryenhoek fell.

[14]

The trial justice concluded that s. 85 of the
Industrial
    Establishments Regulation
is a complete and discrete code with respect to
    the requirements for protecting workers from falls in a case such as this 
    that is, a fall from a chattel rather than a workplace fixture governed by s.
    13. It was not appropriate for the Crown to use the general duty clause in s.
    25(2)(h) of the
OHSA
to extend the respondents duty beyond what was
    specifically outlined in s. 85 of the regulation. Thus, guardrails on the
    A-frame Vryenhoek used were not required as a matter of law. The trial justice
    noted that no one was aware of any prior incidents of falls from A-frame
    platforms and that the system had not been criticized by the Ministry of Labour
    in prior inspections.

[15]

Finally, the trial justice reviewed photographic
    evidence and found that there was a form of guardrail when the accident
    occurred, and that it was not unreasonable to conclude that Vryenhoek may have
    placed it there. Therefore, he concluded, the Crown had failed to prove the
    particulars of the charge under s. 25(2)(h) in any event.

(2)

The Summary Conviction Appeal Judge

[16]

The Crown appealed dismissal of the charge under
    s. 25(2)(h) on two bases. First, the Crown argued that the trial justice failed
    to address whether it was reasonable for Quinton Steel to have taken the
    precaution of using guardrails in the circumstances. Second, the Crown argued
    that the trial justice misapprehended the evidence by identifying a guardrail
    in one of the photographs.

[17]

The appeal judge concluded that the trial
    justice was alive to the fact that Vryenhoek was a welder operating with
    limited visibility, and that the trial justice had adjudicated the charge as
    laid. He concluded, further, that although the trial justice misapprehended the
    evidence concerning the existence of a guardrail, the misapprehension was not
    the basis of Quinton Steels acquittal. The appeal judge dismissed the appeal,
    finding there was no error of law and the verdict was not unreasonable.

DISCUSSION

[18]

I begin by revisiting the courts approach to
    the interpretation of public welfare legislation. I then consider the nature
    and purpose of the
OHSA
and the interaction of the Act and the regulations,
    before addressing the issues raised on appeal.

(1)

Interpreting public welfare legislation

[19]

The starting point is that the
OHSA
is
    public welfare legislation  legislation designed specifically to protect workers
     and this court has consistently instructed that it must be interpreted
    generously, not narrowly or technically, in order to allow it to achieve this purpose:
    see
R. v. Timminco Ltd
. (2001) 54 O.R. (3d) 21 (C.A.), at p. 27;
R.
    v. The Corporation of the City of Hamilton
(2002) 58 O.R. (3d) 37 (C.A.),
    at para. 16;
R. v. Dofasco Inc.
, 2007 ONCA 769, 87 O.R. (3d) 161, at
    para. 13. As Sharpe J.A. put it in
City of Hamilton
, at para. 16:

The
OHSA
is a remedial public welfare statute intended to guarantee a
    minimum level of protection for the health and safety of workers. When
    interpreting legislation of this kind, it is important to bear in mind certain
    guiding principles. Protective legislation designed to promote public health
    and safety is to be generously interpreted in a manner that is in keeping with
    the purposes and objectives of the legislative scheme. Narrow or technical
    interpretations that would interfere with or frustrate the attainment of the
    legislatures public welfare objectives are to be avoided.

[20]

The respondent acknowledges the need for a
    generous interpretation of the
OHSA
but submits that there are limits;
    the
OHSA
and the regulations cannot be interpreted to apply to every
    possible workplace scenario. The respondent cites this courts decisions in
Blue
    Mountain Resorts Ltd. v. denBok
, 2013 ONCA 75, 359 D.L.R. (4th) 276, at
    para. 26 and
Ontario (Ministry of Labour) v. Sheehans Truck Centre Inc.
,
    2011 ONCA 645, 107 O.R. (3d) 763, at paras. 29-30 in support of this
    proposition.

[21]

I agree that there are limits to the permissible
    interpretation of public welfare statutes, and to the
OHSA
in
    particular; the intention of the legislature remains the touchstone. But
    neither
Blue Mountain Resorts
nor
Sheehans Truck
provides
    support for a narrow interpretation of s. 25(2)(h). The nature and purpose of
    that section requires a broad interpretation, as I will explain.

(2)

The
OHSA

[22]

The
OHSA
establishes duties that are
    particularized by workplace-specific regulations. Separate regulations govern
    construction, mining, and industrial workplaces. As noted above, the respondents
    factory is an industrial establishment as defined in the
OHSA
and the
Industrial
    Establishments Regulation
applies to it.

[23]

Section 25(1) of the
OHSA
refers
    specifically to the regulations and imposes a duty on employers to ensure that
    the measures and procedures prescribed by the regulations are carried out. But
    s. 25(1) does not exhaust employers duties under the Act. Section 25(2)(h) provides
    as follows:

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;

[24]

Section 25(2)(h) establishes a duty that this
    court has described as even more sweeping than s. 25(1):
R. v. Wyssen
(1992), 10 O.R. (3d) 193 (C.A.), at p. 198. It is more sweeping because it does
    not depend on the existence of a specific regulation prescribing or proscribing
    particular conduct. Section 25(2)(h) is necessary because, as the Crown submits,
    the regulations cannot reasonably anticipate and provide for all of the needs
    and circumstances of the many and varied workplaces across the province.

[25]

The
OHSA
is for the most part a strict
    liability regime. This means that, for most offences  including s. 25(2)(h) 
    the Crown is not required to prove
mens rea
in order to prove an
    offence. The Crown is required to prove only the
actus reus
of an
    offence  to prove, in other words, that the offence occurred  beyond a
    reasonable doubt. If the Crown succeeds in doing so, an employer can avoid
    liability only by establishing, on a balance of probabilities, that it acted
    with due diligence in seeking to avoid the event that occurred:
R. v. Sault
    Ste. Marie
,
[1978] 2 S.C.R. 1299, at pp. 1325-1326.

(3)

Did the trial justice adjudicate the charge as
    laid?

[26]

The respondent was charged with violating s.
    25(2)(h) of the
OHSA
. As noted above, the charge was particularized,
    as this court required in
R. v. Brampton Brick
(2004), 189 OAC 44
    (C.A.), at p. 52, on consent at the commencement of the trial. The Crown
    alleged that the respondent failed to take the reasonable precaution of
    installing guardrails at the open sides of a raised wood platform.

[27]

The Crown was not required to establish a
    failure to comply with any of the regulations in order to prove that s.
    25(2)(h) had been violated. It is common ground for the purposes of this appeal
    that s. 13 of the
Industrial Establishments Regulation
, which requires
    the use of guardrails in particular circumstances, does not apply in this case
    because it applies only to permanent platforms, not temporary ones. Nor does s.
    85 of the same regulation  which prescribes the use of fall protection
    equipment  apply, because Vryenhoek was not working at a height of three
    metres or more.

[28]

Instead, the Crown was required to prove that
    the installation of guardrails was a reasonable precaution in the circumstances
    of this workplace in order to protect a worker and that the respondent failed
    to install the guardrails. This was the
actus reus
of the offence. The
    respondent argued that the Crown did not succeed in proving the
actus reus
and did not call any evidence or otherwise attempt to establish a due diligence
    defence.

[29]

There is no question that the respondent did not
    install guardrails on the temporary platform from which Vryenhoek fell. The
    trial justices finding to the contrary has no support in the record and was
    not defended by the respondent. The only question that had to be determined by
    the trial justice was the first one: was the installation of guardrails a
    reasonable precaution necessary in the circumstances of this workplace in order
    to protect Vryenhoek?

[30]

The Crowns position, in essence, is that this
    question was never answered by the trial justice. I agree.

[31]

As this court pointed out in
Brampton Brick
,
at para. 18, the surrounding circumstances
    are an element of the offence under s. 25(2)(h) that must be considered before
    it can be concluded that a precaution not taken was reasonable. In order to
    apply s. 25(2)(h), the trial justice had to consider all of the relevant
    circumstances including the nature of the workplace, the work being performed
    by Vryenhoek, the equipment he was using, and the manner in which he was
    performing the work. Vryenhoek was welding while moving from side-to-side across
    a temporary platform; he was wearing a welding helmet that afforded him only
    limited sight and could not see the end of the platform from which he fell to
    his death. The question for the trial justice was whether the installation of
    guardrails on the A-frame platform was a reasonable precaution
in these circumstances
.

[32]

The trial justice did not answer this question.
    Instead, he concluded that s. 25(2)(h) of the
OHSA
was not violated
    because the respondent had not violated any provision of the regulations, and
    s. 25(2)(h) could not be used to extend an employers duties beyond those set
    out in the regulations.

[33]

The appeal judge found that the trial justice adjudicated
    the charge as laid, describing him as alive to the fact that this was a welder
    with limited visibility, working on a platform approximately six and a half
    feet from the floor. I do not read the trial justices decision in this way.
    The focus of the trial justices reasons was on the relationship between the
    statutory requirement and the regulations. He concluded that the respondent
    could not be convicted of violating s. 25(2)(h) because the regulations had not
    been violated. That conclusion is erroneous, as I will explain.

(4)

The relationship between the
OHSA
and the
    regulations

[34]

The trial justice relied on the regulations under
    the
OHSA
to limit the scope of the statutory duty set out in s.
    25(2)(h). I set out the salient portions of his reasons, at paras. 75-76:

I conclude, then, as a matter of fact and law,
    that the provisions of section 13 of the
Industrial Establishment
    Regulation
do not apply in this case. I further conclude,
    as a matter of law, that the provisions of section 85 of the
Industrial
    Establishment Regulation
form a complete and discrete
    code with respect to the requirements for protecting workers from falls in a
    case such as this, where the worker is standing atop an A-frame and plank
    system that is a chattel rather than a fixture within the industrial
    establishment.

I further
    conclude, therefore, that it is not appropriate for the Crown to use the
    general duty clause of section 25 of the
OHSA
to extend requirements beyond those specifically outlined in section 85 of the
Industrial
    Establishments Regulation
, which does govern the
    situation.

[35]

The error here is plain. Section 25(1) of the
OHSA
requires employers to ensure that the measures and procedures prescribed by the
    regulations are carried out. But employers are required to comply with s. 25(2)(h)
    as well as s. 25(1), and the application of s. 25(2)(h) does not depend on compliance
    with any of the regulations.

[36]

The respondents submissions in this court reflect
    a similar confusion about the relationship between the
OHSA
and the
    regulations. The respondent submits:

The normative standards, setting the reasonable precautions to
    address the hazard of falling, have been set out by the Legislature in the
    applicable regulations referred to above. The general duty clause cannot be
    used to modify these standards. To do so introduces uncertainty and would
    improperly permit regulated parties to be held to stricter standards than the
    Legislature has prescribed.

[37]

This submission proceeds from a fundamental
    error. The Legislature did not prescribe the
Industrial Establishment
    Regulation
. The regulation is subordinate legislation that was promulgated
    by the executive branch of government pursuant to authority set out in s. 70 of
    the
OHSA
.

[38]

Regulation-making authority under s. 70 does not
    extend to the making of regulations that purport to vary or limit the operation
    of employers duties under s. 25(2)(h) of the
OHSA
. It is an inversion
    of the normal relationship between the Act and its regulations  primary and
    secondary legislation  to give legislative duties a narrow interpretation so
    as not to interfere with regulations made under the Act.

[39]

This error runs throughout the respondents
    argument. The respondent describes the Crown as seeking to use s. 25(2)(h) to
    modify objective standards established in the regulations by the legislature
    and submits, in essence, that the regulations have occupied the field 
    exhaustively determined the circumstances in which guardrails and fall
    protection are required. In other words, once regulations were made governing
    falls in the workplace, the general duty set out in s. 25(2)(h) had no role to
    play. As the respondent puts it: [t]he Legislature has, therefore, defined the
    acceptable level of risk for workplace falls. If the government position is now
    that working at a height of 6.5 feet represents an unacceptable risk, that
    should be addressed through the legislative process rather than through the
    hindsight application of the general duty clause.

[40]

This submission must be rejected.

[41]

First, regulations cannot occupy the field by
    displacing statutory authority. Section 25(2)(h) specifically requires that
    employers take every precaution reasonable in the circumstances for the
    protection of a worker. As I have said, that duty is not varied or limited by
    the existence of specific regulations.

[42]

Second, the effect of the trial justices
    interpretation is to limit the protection afforded workers in industrial
    establishments working on temporary structures: they are entitled to receive
    fall-protection equipment only, and then only if they are working at a height
    of more than three metres. This interpretation seriously undermines the purpose
    of the
OHSA
 the protection of the health and safety of workers  and
    is antithetical to the generous interpretation that the law requires.

[43]

The need for a generous interpretive approach to
    s. 25(2)(h) does not lead to intolerable uncertainty for employers, as the respondent
    submits. To be sure, certainty is an important aspect of the rule of law;
    parties should be able to ascertain what the law requires in order that they can
    arrange their affairs in compliance with its demands: see Lon Fuller,
The
    Morality of Law
(New Haven: Yale University Press, revd edn. 1969) at pp.
    63-64. This is particularly so in the context of the criminal law, and is
    reflected in the constitutional prohibition of retrospective criminal liability
    under s. 11(g) of the
Charter
: see
R. v. K.R.J.
,

2016 SCC 31, [2016] 1 S.C.R.
    906, at paras. 23-26.

[44]

But prescriptive certainty is not required in
    the context of regulatory offences such as s. 25(2)(h). That section establishes
    a standard, rather than a rule, the requirements of which are tailored to suit particular
    circumstances. Employers must take every precaution
reasonable
in the
    circumstances in order to protect workers. Reasonableness is a well-known legal
    concept that is interpreted and applied in a wide variety of legal contexts.
    Its use in s 25(2)(h) does not give rise to intolerable uncertainty.

[45]

It may not be possible for all risk to be
    eliminated from a workplace, as this court noted in
Sheehan Truck
, at
    para. 30, but it does not follow that employers need do only as little as is
    specifically prescribed in the regulations. There may be cases in which more is
    required  in which additional safety precautions tailored to fit the
    distinctive nature of a workplace are reasonably required by s. 25(2)(h) in
    order to protect workers. The trial justices erroneous conception of the
    relationship between s. 25(2)(h) and the regulations resulted in his failure to
    adjudicate the s. 25(2)(h) charge as laid.

CONCLUSION

[46]

I would allow the appeal and order a new trial
    before a different Justice of the Peace.

Released: December 20, 2017 (G.P.)

Grant Huscroft J.A.

I agree. G. Pardu J.A.

I agree. Fairburn J.A.


