In R. v. Bondfield Construction Company Limited, 2022 ONCA 302, the court heard that Stephane Audet, “a field service technician, was injured during the construction of the Southwest Detention Centre” in Windsor in 2013 “when the conductive tool he was using to clean a switchgear cabinet made contact with an energized part at the back of the cabinet.”
Bondfield Construction Company Limited (Bondfield), one of the respondents, was “in charge of the project” and contracted J.M.R. Electric Ltd. (J.M.R.), another respondent, for electrical installations.
According to court documents, J.M.R. “contracted Toromont to supply a custom switchgear and two emergency generators for the project, and to commission, test and train workers on the equipment.” Audet, the court explained, “was employed by Toromont.”
The court noted that “Audet and a second field service technician were assigned to commission and test the two emergency generators” at the detention centre. The technicians were “authorized by J.M.R. to enter the electrical and generator rooms for this purpose” and “[W]hile both were experienced technicians, neither was a licensed electrician or electrician apprentice.”
According to court documents, Audet, while reaching to clean the metal filings at the back of switchgear cabinet, had the “conductive metal band on his paint brush” come into contact with “an energized input stab, causing an electrical fault within the cabinet and throughout the switchgear.”
“The result was an arc flash, that is, an electrical explosion, producing a large ball of fire that erupted from the cabinet, inflicting severe burns on Audet and causing extensive damage to the switchgear,” the court explained.
After an investigation by the Ministry of Labour, the three respondents (Bondfield, J.M.R. and Toromont) were “charged with offences under ss. 23(1)(a) and 25(1)(c) of the OHSA.”
“The charges related to their alleged failures, as an employer in the case of Toromont and J.M.R., and as a constructor in the case of Bondfield, to ensure that certain measures and procedures prescribed by O. Reg. 213/91 were carried out at the worksite. These included the measures and procedures prescribed by ss. 184(1) and 190(4) of the regulation, and in the case of Toromont, s. 187,” the court noted.
The trial justice, justice of the peace Maureen Ryan-Brode, convicted the respondents “under ss. 23(1)(a) (in the case of Bondfield) and 25(1)(c) (in the case of Toromont and J.M.R.) of failing to ensure that the measures and procedures under ss. 184(1) and 190(4) were carried out.”
Justice Ryan-Brode also convicted Toromont of “failing to ensure that the measures and procedures under s. 187 were carried out.” The trial justice, the court noted, concluded that “the actus reus for each of these offences was made out.”
In a breakdown of Justice Ryan-Brode’s reasonings, the Court of Appeal noted that the trial justice had “stated that the word ‘exposed’ in s. 190, in the context of a dangerous high-voltage electrical room, means ‘easily accessible to an unauthorized person’, and that to hold otherwise would be to deprive any such person of the protection contemplated by the OHSA.”
On this point, Justice Ryan-Brode found that “an energized part of electrical equipment in a cabinet that is fastened by two thumb screws and easily accessible is exposed within the meaning of the section.”
Of the offence under s. 190(4), the trial judge also found that “Audet was assigned to work near energized equipment and as a result inadvertently worked on energized equipment.” She therefore determined that “[S]ince ‘work was to be done on or near energized exposed parts of electrical equipment’ and the power supply to the equipment had not been disconnected, locked out and tagged, the actus reus of the s. 190(4) offence was established.”
The court noted that s. 184(1) “mandates that only authorized persons may enter or be permitted to enter a room or other enclosure containing energized electrical parts.” And Justice Ryan-Brode found that “this section applied to the electrical room where the accident took place because, based on her interpretation of ‘exposed’ in s. 190, the room contained exposed energized electrical parts.”
She also determined on this point that “the door to the electrical room was propped open, leaving no controls on entry into the room,” so she “concluded that the actus reus of the s. 184(1) offences had been established.”
The actus reus was also made out on the offence under s. 187 as, the court noted, “Toromont allowed its employee to use tools capable of conducting electricity so close to energized electrical equipment that they could make electrical contact.”
Justice Ryan-Brode determined that “none of the respondents had established a due diligence defence in respect of ss. 184(1) and 190(4), and that Toromont had not established such a defence in respect of s. 187.”
According to court documents, Bondfield was fined “$150,000 for the offence in relation to s. 190(4) and $25,000 for the offence in relation to s. 184(1); J.M.R. to a fine of $50,000 in relation to the s. 190(4) offence and $25,000 for the s. 184(1) offence; and Toromont to a global penalty of $210,000, allocating $170,000 to the s. 190(4) offence, $10,000 to the s. 184(1) offence, and $30,000 to the s. 187 offence.”
The respondents appealed, arguing that Justice Ryan-Brode erred in finding that “the Crown had proved beyond a reasonable doubt that the electrical parts were ‘exposed’, as required to prove the actus reus of the offences in relation to ss. 184(1) and 190(4).”
The appeal judge, Justice Christine Malott of the Ontario Court of Justice, “accepted their arguments on this point” and concluded that Justice Ryan-Brode’s “interpretation of the word ‘exposed’ in the context of a dangerous high-voltage electrical room as meaning ‘accessible to an unauthorized person’ was wrong.”
“Instead,” the court noted, Justice Malott “accepted the respondents’ argument that, in accordance with the ordinary plain meaning of the word, ‘exposed’ means ‘not concealed or covered.’ ”
With this definition of “exposed,” Justice Malott determined that “the equipment had not been ‘exposed’ at the relevant time” and “rejected the argument that the energized parts (the input stabs at the rear of the cabinet) were in fact exposed at the time of the incident, as Audet ‘had taken active steps to defeat all precautions in place and expose the area himself, despite not being scheduled to work there, not conducting a voltage test, not wearing his protective equipment and using a conductive tool.’”
Therefore, Justice Malott determined that “the preconditions for ss. 184(1) and 190(4) were not met, and as such the Crown had not proved the actus reus of the offences beyond a reasonable doubt.” The convictions were set aside and the appeal judge “entered acquittals for all of the respondents in relation to ss. 184(1) and 190(4).”
Justice Malott also set aside Toromont’s conviction under the s. 187 offence “on the basis that the trial justice erred in not considering one of the branches of due diligence articulated in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in particular, whether Toromont reasonably believed in a mistaken set of facts, which, if true, would render the act or omission innocent.”
According to court documents, the appeal judge ordered a new trial on the s. 187 charge.
The Crown sought leave to appeal at the Court of Appeal pursuant to s. 131 of the Provincial Offences Act. Justice Russell Juriansz granted leave, framing the first issue on appeal as: “Did the appeal court err by holding that the Crown failed to prove the actus reus of the offences related to ss. 184(1) and 190(4) of O. Reg. 213/91?”
The second issue framed by Justice Juriansz was “whether the appeal judge erred in holding that the trial justice failed to analyze whether Toromont reasonably believed in a mistaken set of facts which, if true, would render its contravention of s. 187 innocent.”
According to court documents, “Toromont conceded the second issue” and the Court of Appeal agreed that when read as a whole, “it is clear that the trial justice, as she stated she had done, addressed and dismissed both parts of Toromont’s due diligence defence.” Therefore, the Court of Appeal allowed the Crown’s appeal on this ground.
“The proper interpretation of ss. 190 and 184 of O. Reg. 213/91” was the central issue on appeal, Justice Katherine van Rensburg, writing for the Court of Appeal, explained.
In her analysis of s. 190(4), Justice van Rensburg referred to an argument made by the Crown in oral submissions that “the meaning of this section is that no work is to be done on live electrical equipment.”
The judge disagreed, noting that “[T]here is no general prohibition against such work.”
“As Toromont points out, provisions such as s. 182 restrict work connecting, maintaining or modifying electrical equipment or installations to persons qualified as electricians or otherwise permitted to do so. In addition, s. 191 of the regulation sets out the precautionary measures to be taken when ‘it is not reasonably possible to disconnect the equipment from the power supply before working on or near energized exposed parts,’ anticipating that there will be occasions where work is performed on live electrical parts,” she explained, noting that “it is not sufficient that Audet was working on live electrical parts at the time of the accident.”
“Meaning must be given to the wording of the section, which engages the competing definitions of the word ‘exposed’ in the context of s. 190,” she added.
The court noted that there is “no definition in the regulation, or for that matter in the OHSA, for the term ‘exposed,’ whether in relation to energized electrical parts or at all.”
On this point, the Crown’s position was that “an exposed electrical part is any part that is easily accessible, irrespective of how it is exposed,” while the respondents argued that “electrical parts must already have been exposed, in the sense of uncovered or capable of being inadvertently touched, before the section can apply.”
Justice van Rensburg noted that because “exposed” is “used here in the technical context of electrical hazards and safety measures, it is helpful to consider the technical definitions of the term in the Electrical Safety Code.”
“As the Electrical Safety Code definitions illustrate, the meaning of the term ‘exposed’ in relation to electrical parts depends on the context in which it is used. One cannot lose sight of the fact that the issue in this case is not the interpretation of a single word in isolation, but the interpretation of two regulatory provisions, both of which are contained within a regulation that addresses Electrical Hazards, under a statute whose purpose is to protect worker health and safety,” she explained.
The judge noted that “the point of departure is to examine the full text of s. 190, in order to understand the purpose of the provision and the context in which the obligation under s. 190(4) arises.”
“In my view, it is an error to interpret the term ‘exposed’ in isolation, without looking at the context in which the term is used,” she added.
In reviewing s. 190, Justice van Rensburg wrote that “the section contemplates that, where work is planned on or near exposed parts that are ordinarily energized, while the work is underway the electrical parts will not be ‘energized.’ ”
She noted that when “considered in the context of s. 190” it is “not difficult to attribute meaning to the term ‘exposed’ ” because the “intention is to protect workers who are working on or near exposed electrical parts from the risk of shock or burn.”
“When looked at this way, it is clear that the appeal judge’s definition of the term ‘exposed’ in s. 190(1) is incorrect. In using a dictionary definition of ‘exposed’ as ‘not concealed or covered,’ she ignored the context of s. 190,” the judge explained.
In Justice van Rensburg’s view, “in order to give this section its intended meaning, which is consistent with its goal of protecting workers from electrical hazards, where a worker will be working on or near live electrical parts, and in the course of this work live parts will be ‘exposed’ to the worker, whether because the parts are already exposed or because the work itself entails exposing electrical parts, s. 190(4) requires that the electrical power supply be disconnected before the work begins and while it continues.”
Therefore, the judge was “satisfied that the actus reus of s. 190(4) was made out on the facts of this case.”
“Before Audet began his work, it was clear that work was to be done by him both on and near exposed energized parts of electrical equipment, such that the precautionary measures set out in s. 190 were required,” she wrote.
Turning to s. 184(1), Justice van Rensburg determined that Justice Malott “erred in her conclusion that the high voltage electrical room did not contain exposed energized parts, such that the actus reus of s. 184(1) could not be established.”
“As I explained in the context of s. 190, Audet worked on or near exposed energized parts when he performed his work on the day of the accident. Without restricting the application of s. 184, it is clear that at the very least, on these facts, the high voltage electrical room contained exposed energized parts when Audet worked on or near such parts, and that s. 184 required that only authorized persons enter or be permitted to enter the electrical room at that time,” she wrote.
The court noted that the “essential elements of the actus reus of the s. 184(1) offence are therefore: (1) a person, other than a person authorized to do so by the supervisor in charge of the project, enters or is permitted to enter a room or other enclosure; and (2) the room or other enclosure contains exposed energized electrical parts.”
“The issue respecting the actus reus in this case is whether the Crown established that both of these essential elements were present at the time of the alleged offence. In other words, the factual issue is whether any unauthorized persons were permitted to enter the electrical room at the time Audet was doing his work on exposed energized electrical parts,” explained Justice van Rensburg, noting the Crown “failed to establish that while Audet performed his work on the switchgear that day, access to the room was not controlled.”
The Crown also “failed to establish that the room contained exposed electrical parts at any time other than when Audet performed his work,” the judge added, dismissing the appeal on the s. 184(1) offences.
Justice van Rensburg, with Justices Kathryn Feldman and Steve Coroza in agreement, determined to allow the appeal in part in a decision released April 14.
The court “set aside the acquittals for the offences in relation to s. 190(4) of O. Reg. 213/91” and upheld the “acquittals for the offences in relation to s. 184(1) of the regulation.”
Justice van Rensburg remitted the “issues not determined by the appeal judge in relation to the ss. 190(4) and 187 offences, namely, the respondents’ due diligence defences and sentence appeals, to another appeal judge of the Ontario Court of Justice for determination.”
The Ministry of the Attorney General, on behalf of Crown counsel, declined to comment on the decision.
Counsel for Toromont declined to comment on the decision at this time. Counsel for J.M.R. did not respond to request for comment before press time.
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