Counsel:

Brian Fukuzawa, for the Crown

Rosalind Cooper and Charles A. Toth, for the accused

¶ 1      EPSTEIN J.:— Mr. Walters appeals the conviction imposed by the Honourable Mr. Justice MacDonnell on December 4, 2003 on a charge under section 27(2)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 for failing, as a supervisor, to take every precaution reasonable in the circumstances for the protection of a worker.

¶ 2      The issue raised in Mr. Walter's appeal is whether, on the facts as found by the trial judge, he was a "supervisor" within the meaning of the OHSA.

¶ 3      The Crown has cross-appealed the sentence imposed on January 15, 2004 in which Justice MacDonnell sentenced Mr. Walters to pay a fine of $500.

The Facts

¶ 4      The following is a summary of the facts as found by the trial judge.

¶ 5      Mr. Domenic Leoncini was injured at work on June 28, 2001. At the time the City of Toronto's Department of Parks and Recreation employed Mr. Leoncini as a summer student. He was part of a crew of four workers whose duties included cutting the grass in city parks. Mr. Walters was the "lead hand" on that crew.

¶ 6      On June 8 Mr. Walter's crew was assigned the task of cutting the grass at 2700 Eglinton Avenue West. The crew loaded up the necessary equipment onto their truck and proceeded to the job site. Upon arrival Leoncini began cutting the grass.

¶ 7      He used a large mower that had a set of handles. At the top of the handles were three bars. One such bar was the "speed bar". It controlled the forward and backward movement of the machine. Next to the speed bar was the "dead man's bar" or "dead man's switch". This switch controlled the action of the cutting blades. The third bar was the steering bar.

¶ 8      The operator would start the mower with the ignition switch. This switch engages the mower but the machine is designed so that the operator had to press the speed bar to set the machine in motion. While the motor would then be running and the machine would be in motion, the cutting blades would not operate until the operator squeezed the dead man's bar. In other words the blade would only turn if the operator held the dead man's bar and the steering bar, together. If the operator released his or her grip on those two bars the blades would automatically stop.

¶ 9      Mr. Walters had modified the machine Mr. Leoncini was using that day so that the dead man's switch was disabled. Mr. Walters did this by taping the dead man's bar to the steering bar so that the cutting blades would keep spinning even if the operator took his hands off the controls.

¶ 10      While Mr. Leoncini was cutting the grass on the day in question, the machine became stuck in a corner. Another summer student came over to assist in freeing the machine. While he pushed on the back, Mr. Leoncini got down on his knees at the front and pulled. The machine was still running at this time. With some difficulty the two students freed the machine. As they did so, Mr. Leoncini fell onto his backside. At the same time, the mower reared up on to its back wheels and then forward toward Mr. Leoncini. As Mr. Leoncini scrambled to get out of the way his foot became caught in the mower. The cutting blades shredded his boot and caused serious injury to his foot.

¶ 11      Mr. Leoncini would not have been injured had Mr. Walters not disabled the dead man's switch.

Analysis

¶ 12      Section 120(1) of the Provincial Offences Act, R.S.O. 1990 c. P.33 provides that an appeal against conviction can only be allowed on the ground that it is unreasonable or cannot be supported by the evidence.

¶ 13      Section 1 of the OHSA defines a "supervisor" as a "person who has charge of a workplace or authority over a worker".

¶ 14      The duties of a supervisor are set out in subsections 27(1) and (2) of the OHSA as follows:

¶ 15      Counsel for Mr. Walters submits that the trial judge erred in law in concluding that Mr. Walters was a "supervisor" within the meaning of the OHSA. The basis of this submission rests in the assertion that Mr. Walters had no ability to enforce compliance with his instructions and as a result cannot be a "supervisor".

¶ 16      The argument is that a supervisor must have sufficient authority to be able to fulfill the duties set out in s. 27(1) and (2) of the OHSA. An interpretation that results in the imposition of such obligations without appropriate enforcement powers is inconsistent with the rules governing the construction of statutes.

¶ 17      In assessing whether Justice MacDonnell's conclusion that Walters was a supervisor within the meaning of the Act, is reasonable and was supported by the evidence, I start with the observation that the OHSA is a public welfare statute with the broad purpose of maintaining and promoting the reasonable level of protection for the health and safety of workers in and about their workplaces. The statute should be interpreted in a manner consistent with that purpose.

¶ 18      A supervisor must be someone who has hands-on authority. The test is objective, based on the individual's actual powers and responsibilities. Whether or not Mr. Walters considered himself to be a supervisor is not relevant. See: R. v. Adomako [2002] O.J. No. 3050.

¶ 19      There was certainly ample evidence of Mr. Walter's authority. He was the lead hand in charge of his crew. He assigned work and answered questions. He had influence over who was assigned to him and was expected to address safety issues in the workplace.

¶ 20      I disagree with Mr. Walter's argument that he had no enforcement powers and therefore was not a supervisor. First, the definition provides that a supervisor has charge of a workplace or authority over a worker. The test is disjunctive. Even if Mr. Walters had no authority, there was ample evidence to support the finding that he had charge of the workplace.

¶ 21      Secondly, even if one were to interpret "charge of a workplace" as requiring enforcement powers, the facts support a finding that Mr. Walters had such powers. His crew did what he told them. If necessary he could enlist the support of those above him but on site, he was "in charge".

¶ 22      Moreover, coming to a conclusion that a lead hand with the job characteristics enjoyed by Mr. Walters is a supervisor within the meaning of the OHSA, furthers the purpose of the Act in the sense that a broad interpretation of the meaning of "supervisor" increases responsibility over worker safety thereby focusing more attention and resources on such safety.

¶ 23      The trial judge's finding that Mr. Walters was a supervisor within the meaning of the Act was supported by the evidence and was not unreasonable.

¶ 24      For these reasons, the appeal against conviction is dismissed.

The Sentence Appeal

¶ 25      Justice MacDonnell, in his reasons for sentence identified the Act as a public welfare statute and as such that the penalty should emphasize the importance of the fulfillment of the obligations to ensure worker safety. As such he recognized deterrence as being "close to the heart" of his sentencing decision.

¶ 26      The trial judge then proceeded to observe that Mr. Walters, a hard working employee of 27 years with the City, had not anticipated the accident. Furthermore, he had paid a high price as a result of the proceedings and had expressed remorse.

¶ 27      The employer had been fined $100,000. Mr. Walters, a person far down the chain of command, was also held responsible and penalized. That, in Justice MacDonnell's view, sent a clear message that the matter was serious and addressed the general deterrence.

¶ 28      The Crown submits that the sentence of a $500 fine is unfit as it does not give sufficient weight to the paramount consideration of general deterrence. Furthermore, says the Crown, it does not give sufficient weight to Mr. Walter's actions, actions that resulted in a serious injury to another worker.

¶ 29      In considering the fitness of a sentence imposed an appellate court should not interfere unless the sentence is clearly excessive or inadequate.

¶ 30      The Supreme Court of Canada in R. v. Shropshire [1995] 4 S.C.R. 227 made it clear that an appellate court should not substitute its opinion as to the fitness of a sentence for that of the trial judge.

¶ 31      In his detailed sentencing decision, Justice MacDonnell correctly identified the principles of sentencing particularly the importance of general deterrence and accounting for Mr. Walter's actions in causing harm to another worker.

¶ 32      In every case, the judge in charge of the sentencing decision must impose a fit sentence after taking into account the relevant factors. It is not the task of appellate review of this task to simply look at the amount of the fine alone to determine fitness. All of the relevant factors must be considered in assessing fitness.

¶ 33      Justice MacDonnell not only recognized the controlling principles but also applied the factors in the case before him in light of those principles. In terms of the important principle of general deterrence, the trial judge sent the clear message that even those who occupy positions a "considerable distance down the ladder" must concentrate on and take responsibility for worker safety. Such a message will undoubtedly have a significant general deterrent effect. While in the sentencing decision Justice MacDonnell did not elaborate on the consequences to Mr. Leoncini, of the injury, he did make reference to its being serious.

¶ 34      I am satisfied that the learned trial judge took into account the considerations relevant to the amount of the fine and that the fine was a fit sentence. While some trial judges may have imposed a higher fine, in all of the circumstances the sentence was not manifestly unreasonable.

¶ 35      The appeal as to sentence is dismissed.

EPSTEIN J.

QL UPDATE:  20041216
cp/s/qw/qlmxd