R. v. Wyssen (J.), (1992) 58 O.A.C. 67 (CA)

• Judge: Dubin, C.J.O., Finlayson and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 17, 1992
• Jurisdiction: Ontario
• Citations: (1992), 58 O.A.C. 67 (CA)

R. v. Wyssen (J.) (1992), 58 O.A.C. 67 (CA)

MLB headnote and full text

Her Majesty The Queen (appellant) v. Jake Wyssen, c.o.b. as Jake Wyssen Enterprises (respondent)

(C5390; No. 709/89)

Indexed As: R. v. Wyssen (J.)

Ontario Court of Appeal

Dubin, C.J.O., Finlayson and Blair, JJ.A.

September 17, 1992.

Summary:

The accused employer of an independent contractor was charged with four offences under the Occupational Health and Safety Act and Regulations. The trial judge dis­missed the charges on the ground that the Act did not apply to the employer of an independent contractor. The decision was affirmed on appeal by Lesage, A.C.J.D.C. The Crown appealed.

The Ontario Court of Appeal allowed the appeal and directed a new trial. The court held that the Act applied to independent contractors.

Trade Regulation - Topic 7702

Industrial safety - Employer defined - An employer of an independent contractor was charged under the Occupational Health and Safety Act and Regulations - The Ontario Court of Appeal held that an employer of an independent contractor was an "employer" within the meaning of s. 1 of the Act - Similarly, the independent con­tractor was a "worker" under the Act - Accordingly, the Act applied to the employer.

Trade Regulation - Topic 7703

Industrial safety - Worker defined - [See Trade Regulation - Topic 7702 ].

Cases Noticed:

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2) (1992), 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91 (S.C.C.), refd to. [para. 26].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 27].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 29].

Industrial Safety Act, S.O. 1971, c. 43, sect. 1 [para. 17].

Occupational Health and Safety Act, R.S.O. 1980, c. 321, sect. 1 [para. 9]; sect. 14(1)(c) [para. 3]; sect. 14(2)(g) [para. 4]; sect. 37(1) [para. 21]; sect. 37(2) [para. 23].

Occupational Health and Safety Act Regu­lations (Ont.), R.R.O. 1980, Reg. 691, generally [para. 1].

Provincial Offences Act, R.S.O. 1980, c. 400, sect. 121(2) [para. 18].

Provincial Offences Act, R.S.O. 1990, c. P-33, sect. 138(3) [para. 18].

Authors and Works Noticed:

Driedger, E.A., Construction of Statutes (2nd Ed.), p. 87 [para. 17].

Halsbury's Laws of England (4th Ed. 1976), vol. 16, p. 313, para. 501 [para. 10].

Halsbury's Laws of England (4th Ed. 1991 Reissue), vol. 16, p. 8, para. 1, note 4 [para. 10].

Maxwell, Interpretation of Statutes (12th Ed. 1969), pp. 28, 36 [para. 13]; 47, 48 [para. 16].

Ontario, Debates of the Legislative As­sembly (Oct. 18, 1977), p. 856 [para. 17].

Ontario, Report of the Royal Commission on the Health and Safety of Workers in Mines (1976), generally [para. 16].

Shorter Oxford English Dictionary (3rd Ed.) [para. 14].

Counsel:

Andrea E. Esson, for the appellant;

F. Mott-Trille and D. Pole, for the re­­spondent.

This appeal was heard on April 9, 1992, before Dubin, C.J.O., Finlayson and Blair, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was released on September 17, 1992, and the following judgments were delivered:

Blair, J.A. (Dubin, C.J.O., concurring) - see paragraphs 1 to 18;

Finlayson, J.A. - see paragraphs 19 to 30.