Ontario (Minister of Labour) v. Black & McDonald Ltd. et al., (2011) 278 O.A.C. 284 (CA)

• Judge: Laskin, Rosenberg and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 06, 2010
• Jurisdiction: Ontario
• Citations: (2011), 278 O.A.C. 284 (CA);2011 ONCA 440

Ont. v. Black & McDonald Ltd. (2011), 278 O.A.C. 284 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JN.010

Her Majesty The Queen in Right of Ontario (Ministry of Labour) (appellant) v. Black & McDonald Limited and Thomas G. Fuller & Sons Ltd. (respondents)

(C51467; 2011 ONCA 440)

Indexed As: Ontario (Minister of Labour) v. Black & McDonald Ltd. et al.

Ontario Court of Appeal

Laskin, Rosenberg and Epstein, JJ.A.

June 9, 2011.

Summary:

The respondent Thomas G. Fuller and Sons Ltd., was hired as the general contractor on a project. Fuller retained the respondent Black & McDonald as a subcontractor. A supervisor with Black & McDonald was accidentally killed during the construction. The Ministry of Labour laid charges under the Occupational Health and Safety Act, against both Fuller (counts 1, 2 and 3) and Black & McDonald (counts 4 and 5). Counts 1, 2 and 4 all alleged 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 alleged a failure to take reasonable precautions for the protection of the deceased.

The Ontario Court of Justice convicted Fuller on count 3 and Black & McDonald on count 5, and fined each $85,000. Each respondent appealed its conviction. The Crown cross-appealed against the dismissal of counts 1, 2 and 4, and against the sentences.

The Ontario Superior Court of Justice, in a decision reported at [2009] O.T.C. Uned. I53, set aside the convictions and entered acquittals. The court also dismissed the Crown's cross-appeal. The Crown sought leave to appeal under s. 131 of the Provincial Offences Act.

The Ontario Court of Appeal, per Armstrong, J.A., denied leave to appeal from the acquittals on counts 3 and 5. However, the court granted leave to appeal from the dismissal of counts 1, 2 and 4.

The Ontario Court of Appeal allowed the Crown's appeal, set aside the dismissals and ordered a new trial on counts 1, 2 and 4. The trial judge erred in law in dismissing counts 1, 2 and 4. The appeal court judge erred in upholding the dismissals.

Criminal Law - Topic 76

General principles - Res judicata (multiple convictions for same subject matter precluded) - General principles - [See Criminal Law - Topic 80 ].

Criminal Law - Topic 80

General principles - Res judicata (multiple convictions for same subject matter precluded) - Circumstances when defence may be raised - Five charges under the Occupational Health and Safety Act were laid against both defendants - Counts 1, 2 and 4 all alleged 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 alleged a failure to take reasonable precautions for the protection of the deceased - On appeal, the defendants argued that the trial judge ought to have applied Kienapple to counts 1, 2 and 4 because they were subsumed in the two more general counts, 3 and 5 - The Ontario Court of Appeal rejected that argument - "[T]he application of the rule in Kienapple against multiple convictions does not result in an acquittal; it results in a conditional stay" - Thus, 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 - 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 those counts restored - See paragraph 31.

Trade Regulation - Topic 7864

Industrial safety - Offences - Information - Sufficiency of general charge respecting failure to comply with regulations (incl. particulars) - The Ministry of Labour laid five charges under the Occupational Health and Safety Act against the defendants - Counts 1, 2 and 4 all alleged a failure to comply or a failure to ensure compliance with the design and construction requirement in s. 31(1)(a) of the Regulation - The trial judge dismissed those counts for reasons: the counts were "duplicitous", and the counts contained allegations that were "convoluted", "disingenuous", "vague and ambiguous", and "in some instances barely discloses an offence" - The Ontario Court of Appeal held that each reason amounted to an error of law - Each count alleged a single offence - No count offended the single transaction rule - Neither respondent 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" - The counts disclosed an offence in clear terms and with sufficient particulars - Each count was 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" - The trial judge dismissed counts 1, 2, and 4 on his own initiative, and he was wrong to do so - See paragraphs 19 to 25.

Trade Regulation - Topic 7864

Industrial safety - Offences - Information - Sufficiency of general charge respecting failure to comply with regulations (incl. particulars) - The defendants were charged with five charges under the Occupational Health and Safety Act - Counts 1, 2 and 4 all alleged a failure to comply or a failure to ensure compliance with the design and construction requirement in s. 31(1)(a) of the Regulation - The trial judge dismissed those counts - The provincial offences appeal court judge upheld the dismissal for two reasons: first, "there is definitely duplication and/or overlapping between all five counts"; and second, that the trial judge had exercised his discretion reasonably in reducing the number of counts to one against each defendant - The Ontario Court of Appeal did not agree with either reason - First, "[a] single incident may give rise to more than one charge ... 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" - Second, "[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 Crown's discretion to lay the charges it deems appropriate" - See paragraphs 26 to 29.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - The issue on this appeal was whether the provincial offences appeal court judge erred in law in upholding the dismissal of counts 1, 2 and 4 in an information under the Occupational Health and Safety Act - Those counts all alleged 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 alleged a failure to take reasonable precautions for the protection of the deceased - The defendants argued that their due diligence defence, which succeeded on counts 3 and 5 before the appeal court judge, was bound to succeed on counts 1, 2, and 4 - The Ontario Court of Appeal rejected that argument - Counts 3 and 5 were aimed at different conduct from counts 1, 2 and 4 - The two sets of counts might overlap each other but they did not duplicate each other - If the defendants had a due diligence defence to counts 1, 2 and 4, they had to establish that defence at trial - See paragraph 32.

Trials - Topic 1085

Summary convictions - Informations, search warrants and certificates of offences - Description of charge or offence - [See both Trade Regulation - Topic 7864 ].

Trials - Topic 1094

Summary convictions - Informations, search warrants and certificates of offences - Reference to statute or regulation creating offence - Effect of - [See first Trade Regulation - Topic 7864 ].

Trials - Topic 1096

Summary convictions - Informations, search warrants and certificates of offences - Amendments - Power of judge to amend - [See second Trade Regulation - Topic 7864 ].

Trials - Topic 1100

Summary convictions - Informations, search warrants and certificates of offences - Duplicity - [See first Trade Regulation - Topic 7864 ].

Trials - Topic 1116

Summary convictions - Defences - Multiple convictions for same subject matter precluded - [See Criminal Law - Topic 80 ].

Cases Noticed:

R. v. Cotroni; R. v. Papalia, [1979] 2 S.C.R. 256; 26 N.R. 133, refd to. [para. 20].

R v. Selles (F.) (1997), 101 O.A.C. 193; 34 O.R.(3d) 332 (C.A.), refd to. [para. 20].

R. v. Rowley (1972), 7 C.C.C.(2d) 230 (Ont. C.A.), refd to. [para. 23].

R. v. Milberg et al. (1987), 20 O.A.C. 75; 35 C.C.C.(3d) 45 (C.A.), refd to. [para. 23].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 28].

R. v. Provo, [1989] 2 S.C.R. 3; 97 N.R. 209; 59 Man.R.(2d) 1, refd to. [para. 28].

Statutes Noticed:

Construction Projects Regulation - see Occupational Health and Safety Act Regulations (Ont.).

Occupational Health and Safety Act, R.S.O. 1990, c. O-1, sect. 23(1)(a) [para. 12]; sect. 23(1)(b) [para. 13]; sect. 25(1)(c) [para. 14]; sect. 25(2)(h) [para. 15].

Occupational Health and Safety Act Regulations (Ont.), Construction Projects Regulation, Reg. 213/91, sect. 31(1)(a) [para. 16].

Provincial Offences Act, R.S.O. 1990, c. P-33, sect. 25(2) [para. 20]; sect. 25(6) [para. 24].

Counsel:

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.

This appeal was heard on December 6, 2010, before Laskin, Rosenberg and Epstein, JJ.A., of the Ontario Court of Appeal. In reasons written by Laskin, J.A., the Court delivered the following decision, released on June 9, 2011.