



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. He, 2021 ONCA 240

DATE: 20210414

DOCKET: M51383

Roberts J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Responding Party

and

Yanlin He

Moving Party

Marie-H
élène He
,
    as agent for the moving party, acting in person

Bogdan P. Andronesi and Bryant Greenbaum,
    for the responding party

Heard: October 15 and 23, 2020,
    and March 3, 2021 by video conference

On a
    motion for leave to appeal from the judgment of Justice Angela L. McLeod of the
    Ontario Court of Justice, dated January 4, 2020, dismissing an appeal from the
    conviction entered on January 25, 2019 by Justice of the Peace Renee Rerup.

REASONS FOR DECISION

[1]

Mr. Yanlin He moves for
    leave to appeal the dismissal of his appeal from his convictions for employing
    or otherwise engaging
[1]
two individuals, Mark/Xijin Xu and Gary Wu,
    who lacked a certificate of qualification to perform the compulsory trade of
    construction electrician, contrary to s. 4 of the
Ontario College of Trades
    and Apprenticeship Act
,
2009
, S.O. 2009, c. 22 (the Act). Mr. He
    was self-represented at trial and ably assisted by his daughter, Marie-Hélène
    He, on his appeal to the provincial offences appeal court and to this court.

Motion for leave to admit fresh evidence

[2]

In support of his motion for
    leave to appeal, Mr. He seeks leave to introduce as fresh evidence a newly
    translated excerpt of Mr. Xus trial evidence, accompanied by Mr. Xus affidavit
    evidence demonstrating certain errors in the initial interpretation from
    Mandarin to English.

[3]

In my view, the new evidence
    of the alleged errors in the interpretation of Mr. Xus testimony meets the
    test for admission under s. 117 of the
Provincial Offences Act,
R.S.O.
    1990, c. P.33

and
R. v. Palmer
, [1980] 1 S.C.R. 759. Mr. Xu
    was Mr. Hes key witness before the Justice of the Peace, and his evidence was
    expressly significant to the appeal judge. The new translation could not have
    been obtained during the trial and, while it could have been ready for Mr. Hes
    first appeal, I would not enforce the due diligence requirement too strictly in
    light of the fact that Mr. He was self-represented at trial and assisted by his
    daughter on appeal:
R. v. 1275729 Ontario Inc.
(2005), 203 C.C.C. (3d)
    501 (Ont. C.A.), at paras. 29-30. As noted below, interpretation issues bear on
    trial fairness. It is therefore in the interests of justice that the evidence
    of possible interpretation errors be admitted.

Test for leave to appeal

[4]

The test for leave to appeal
    under s. 131 of the
Provincial Offences Act
, is as well settled as it
    is stringent. To obtain leave, Mr. He must establish three conjunctive criteria:
    (i) special grounds; (ii) on a question of law alone; and (iii) that in the
    particular circumstances of this case it is essential in the public interest or
    for the due administration of justice that leave be granted:
Antorisa
    Investments Ltd. v. Vaughan (City)
, 2012 ONCA 586 (In Chambers), at para.
    8.

[5]

Provincial offences appeal
    judgments are intended to be final, and leave should be granted only in
    exceptional cases:
Ontario (Ministry of the Environment and Climate Change)
    v. Sunrise Propane Energy Group Inc.
, 2018 ONCA 461, 17 C.E.L.R. (4th) 174,
    at para. 15.

The parties positions

[6]

Mr. He submits that the Justice
    of the Peace and the appeal judge erred in finding that he had employed or engaged
    two unqualified individuals to carry out the work in issue. There is no issue
    that Mr. Xu was a certified industrial electrician. According to Mr. He, Mr. Xu,
    as assisted by Mr. Wu, was carrying out the work of an industrial electrician,
    a voluntary trade under the Act, and therefore did not require a certificate of
    qualification as a construction electrician from the College. Mr. He says that because
    of the errors in the interpretation of Mr. Xus evidence, the Justice of the
    Peace and the appeal judge mistakenly concluded that Mr. Xu had admitted to carrying
    out the work of a construction electrician. According to the fresh evidence, Mr.
    Xu made no such admission.

[7]

The College argues that the
    alleged interpretation errors had no effect on the outcome of the trial or the appeal.
    Even without the alleged admissions of Mr. Xu, the evidence of the Colleges
    inspector, John McCollum, established that Mr. Xu, as assisted by Mr. Wu, was
    carrying out the work of a construction electrician and that he lacked a
    certificate of qualification for this compulsory trade. According to the
    College, the unchallenged fact that Mr. Xu was a certified industrial electrician
    was irrelevant because he was carrying out the work of a construction
    electrician, contrary to s. 4 of the Act. In any event, the issues raised do
    not transcend the case at hand. Leave to appeal should be refused.

Factual Background

[8]

Mr. Hes company, Crossing
    Air Tech Systems Inc., contracted with JSI Store Fixtures to install two spray
    booths and two air make up units in the premises that JSI was renovating. Crossing
    Air Tech Systems designed and manufactured the booths and units in its own
    facilities and then moved them for installation to JSIs premises. The
    installation of the booths and units required Mr. Xu, a certified
    industrial electrician, as assisted by Mr. Wu, to attach the booths and units
    to the electric grid of JSIs premises. Crossing Air Tech Systems was not engaged
    to perform any other work in relation to JSIs premises.

[9]

On two occasions, John McCollum,
    an inspector for the College, attended the premises and observed Mr. Xu and Mr.
    Wu, measuring, cutting, bending, and installing the conduit [of the booths and
    units] to the wall and power control of JSIs premises. He ascertained that
    neither Mr. Xu nor Mr. Wu had been issued a certificate of qualification as a
    construction electrician by the College, a compulsory trade. He subsequently
    issued a summons to Mr. He for employing or otherwise engaging Mr. Xu and Mr.
    Wu, who did not have certificates of qualification to perform the work of
    construction electricians, contrary to the provisions of s. 4 of the Act.

[10]

At trial, the Justice of the
    Peace accepted Mr. McCollums evidence that Mr. Xu and Mr. Wu were performing the
    work of construction electricians on a construction site and that Mr. He, who
    had engaged them, was their supervisor. She also accepted certified copies of
    College records indicating that Mr. He, Mr. Xu and Mr. Wu did not hold certificates
    of qualification in the trade of construction electrician. As a result, she
    convicted Mr. He of the offences as charged and imposed a global fine of $7,000
    and one years probation.

[11]

On appeal to the provincial
    offences appeal court, Mr. He was permitted to file fresh evidence in support
    of his argument that Mr. Xu and Mr. Wu were not carrying out the work of a
    construction electrician but rather the work of an industrial electrician. The appeal
    judge dismissed his appeal. She found that while Mr. Xu was a qualified
    industrial electrician, he had admitted to performing the work of a construction
    electrician without a certificate of qualification from the College.

Analysis

[12]

Mr. He raises two issues.
    First he submits that the Justice of the Peace erred in her application of the provisions
    of the Act concerning the scope of work for the compulsory trade of construction
    electrician as opposed to the scope of work associated with the voluntary trade
    of industrial electrician. Second, relying on the fresh evidence, he suggests that
    the erroneous interpretation of Mr. Xus trial evidence affected his right to a
    fair trial. I will consider each in turn.

[13]

It is helpful to start with
    the statutory framework in issue.

[14]

Mr. He was charged with two
    offences under s. 4 of the Act. Section 4 provides that:

No person shall employ or otherwise engage an
    individual to perform work or engage in a practice that constitutes engaging in
    the practice of a compulsory trade unless the individual holds a certificate of
    qualification in that trade that is not suspended or unless the individual is
    an apprentice in that trade and is working pursuant to a registered training agreement
    that is not suspended.

[15]

A certificate of qualification
    is defined in s. 1 of the Act as a certificate of qualification issued by the
    Registrar on behalf of the College. A compulsory trade means a trade prescribed
    under the regulations as a compulsory trade and includes a construction
    electrician. Section 11(1) of
Scope of Practice  Trades in the Construction
    Sector
, O. Reg. 275/11 sets out the scope of work carried out by a construction
    electrician. Relevant to this appeal, this work includes: Measuring, cutting,
    threading, bending, assembling and installing conduits and other types of electrical
    conductor enclosures that connect panels, boxes, outlets and other related
    electrical devices. Section 11(2) provides that the scope of practice of a
    construction electrician excludes work performed by a person who is permanently
    employed in an industrial plant at a limited purposes occupation in the
    electrical trade.

[16]

There is no similar
    prohibition in the Act against employing or otherwise engaging an individual to
    perform a voluntary trade. A voluntary trade, as prescribed by the regulations,
    includes an industrial electrician. Section 20 of
Scope of Practice 
    Trades in the Industrial Sector
, O. Reg. 276/11 provides that the
    scope of practice of an industrial electrician includes installing, maintaining,
    testing, troubleshooting and repairing industrial electrical equipment, and
    associated electrical and electronic controls, and hydraulic and pneumatic equipment
in industrial, manufacturing and power plants
 (Emphasis added).

[17]

Mr. He argues that the Justice
    of the Peace erred in finding that his workers were carrying out the work of a construction
    electrician. He submits that his workers were not working on the construction
    of the premises but only engaging in the electrical work of an industrial
    electrician that was necessary to install the booths, which were manufactured
    elsewhere.

[18]

The difficulty with Mr. Hes
    position is that he has not raised an issue of law. He challenges the Justice
    of the Peaces application of the Acts provisions to the facts of the case.
    This is not an issue of law, but an issue of mixed fact and law. Moreover, Mr.
    He has not pointed to any error in the Justice of the Peaces interpretation of
    the relevant provisions of the Act nor of the evidence. Rather he challenges her
    findings of fact to which this court owes deference on appeal absent palpable
    and overriding error.

[19]

The admitted work of installing
    the booths went beyond electrical work on the booths themselves. Rather, the
    uncontroverted evidence of Mr. McCollum, Mr. He and Mr. Xu, notwithstanding the
    alleged interpretation errors, is that Mr. Xu and Mr. Wu were carrying out
    work to connect the booths to the power grid of the premises in the midst of a
    construction site. This was not work performed solely on equipment in an industrial,
    manufacturing or power plant. There is also no dispute that Mr. Xu and Mr. Wu did
    not have certificates of qualification as construction electricians from the College.
    It was therefore open to the Justice of the Peace to conclude that they were carrying
    out the work of construction electricians and that Mr. He had employed workers
    to perform the work of construction electricians who were not certified by the College.

[20]

Mr. Hes allegation of
    errors in the interpretation of Mr. Xus evidence is more concerning. An
    interpreters failure to properly interpret key evidence may amount to trial
    unfairness and may give rise to a breach of an accuseds right to an
    interpreter under s. 14 of the
Canadian Charter of Rights and Freedoms: R.
    v. Tran
, [1994] 2 S.C.R. 951, at p. 977;
R. v. Rybak
, 2008 ONCA
    354, at paras. 60-62; 233 C.C.C. (3d) 58, leave to appeal refused, [2008] S.C.C.A
    No. 311. As such, this raises an issue of law.

[21]

However, the test for leave
    requires me to go on to consider whether in the particular circumstances of
    this case it is essential in the public interest or for the due administration
    of justice that leave be granted. In my view, it is not. While I am
    prepared to accept the unchallenged evidence of the new translation, it does
    not affect the basis for the Justice of the Peaces convictions.

[22]

At its highest, the new translation
    demonstrates that Mr. Xu did not admit that he was carrying out the work
as
    a

construction electrician
. However, it does not affect the accuracy
    of the interpretation of his evidence about the
nature
of the work that he
    did admit having performed and that the Justice of the Peace determined was the
    work of a construction electrician. There was no dispute about the tasks that Mr.
    Xu and Mr. Wu were carrying out. The question was whether they constituted the
    work of a construction electrician or an industrial electrician. The evidence
    of Mr. McCollum and Mr. He is that the work in issue was carried out on a
    construction site; this was not work on equipment in an industrial plant. The Justice
    of the Peaces conclusion that the work carried out by Mr. Xu and Mr. Wu amounted
    to the work of a construction electrician, a compulsory trade, was open to her
    to make on the record before her.

[23]

As a result, there is no
    basis to support Mr. Hes submission that the erroneous interpretation of Mr.
    Xus evidence led to a miscarriage of justice.

[24]

I would also note that while
    extremely important to Mr. He, this matter does not transcend the parties. It
    is fact-driven based on the particular circumstances of the case. Moreover, it is
    common ground that the College is winding down and that the Act will be
    repealed and replaced with a new statute. As such it is not essential to the public
    interest or the due administration of justice that leave be granted.

Disposition

[25]

Accordingly, Mr. Hes motion
    for leave to appeal is dismissed.

L.B.
    Roberts J.A.





[1]
During
    the hearing of the appeal, I raised the issue of whether it was Mr. He or his
    company who hired or engaged Messrs. Xu and Wu. In subsequent written
    submissions, Mr. He admitted that he engaged them.


