Friday, January 21, 2011

This Week At The Ontario Court of Appeal: 11-01-21

Every week, Wise Law Blog will review decisions from the Ontario Court of Appeal.

Ontario (Labour) v. United Independent Operators Ltd. The defendant here was a load broker, which contracts both with customers who wish it to transport aggregate (sand, gravel, and crushed stone), and with truckers who are independent contractors to do the work. The defendant is a company with eleven full-time employees and a variable number of truckers working as independent contractors, from 30 to 140. A truck driver working for them was injured when he was crushed between two trucks, and the Ontario Ministry of Labour laid charges against the defendant for not having a joint health and safety committee in place at the time of the incident (although they put one in place rapidly following the incident). At trial, the justice of the peace found that the requirement in the Occupational Health and Safety Act for having a JHSC relied on employees being "regularly employed," and that the independent contractors working for the defendant did not count in that regard. The court relied heavily on 526093 Ontario Inc. (c.o.b. Taxi Taxi), [2000] O.O.H.S.A.D. No. 98 (QL) in making this decision. The province appealed to the Ontario COurt of Justice, which agreed with that opinion, and then appealed again.

The Court of Appeal overturned the decision, agreeing with the province that independent contractors are considered to be "regularly employed" under the OHSA. Saying that tnterpretation of the statute had to be done "generously, rather than narrowly" on the basis that a statute designed to protect a minimum level of health and safety for workers should not be interpreted in a manner that might frustrate the purpose of the document, the Court began analyzing the language of the Act:
9. (2) A joint health and safety committee is required,

(a) at a workplace at which twenty or more workers are regularly employed;
The Court began by pointing out that "regularly" and "employed" are two words not defined within the OHSA. Noting that "employer," within the OHSA, includes employers of independent contractors, the Court then extrapolated that if the defendant was the employer of the truck drivers, then it followed that the truck drivers were employed by it. Looking at "regularly," the Court decided that by the dictionary definition of the world, the defendant "regularly" employed truck drivers.

The defendant had previously argued that "regularly employed," as a phrase, was intended by the Legislature to distinguish between traditional employees and those in other types of employment, and that it should mean workers who regularly worked at a given location. The Court disagreed with this interpretation - in the process overturning Taxi Taxi by pointing out that in that decision, the court had performed a contextual analysis of the words and further had failed to consider the purpose of the OHSA. The Court pointed out that the UIOL's argument would potentially disenfranchise employees of businesses working remotely or in dispersed workplaces.

However, instead of ordering a new trial, the Court ordered a stay of proceedings, as the UIOL had put a JHSC in place and that, barring the important and novel question of law which was now answered, the point of proceedings was moot. Read-the-whole-case rating: 3 for a easily followed piece of statutory analysis.

R. v. Kummer. An appeal on sentence from a number of criminal charges stemming from an DUI crash where the defendant, driving with blood alcohol over twice the legal limit and at extreme speed, crashed into another car killing two 12-year-old boys in the car and also one of his own passengers. At trial, Mr. Kummer pled guilty to all charges and was sentenced to eight years imprisonment (with all sentences being served concurrently). He appealed the sentence, arguing that previous impaired-driving-related sentences where deaths had been caused by the defendants upheld by the Court of Appeal had been for four and five years in length and that his eight-year sentence fell outside the range established by those previous cases.

The Court of Appeal disagreed, stating that those previous cases did not constitute a cap on impaired driving sentences. Firstly, they pointed out that the maximum sentence for impaired driving causing death is life imprisonment, and that to impose a judicially-derived cap on impaired driving sentences of this type would essentially be defying the will of Parliament. They also pointed out that in one of the cases cited by Mr. Kummer, the Court had specifically stated that a range of sentences for this offence should not be rigidly applied.

The Court then pointed out instances where persons causing deaths while driving impaired had received longer sentences than that of Mr. Kummer that were more comparable to the events in Mr. Kummer's case. The Court noted that Mr. Kummer's good character evidence and lack of prior convictions had been taken into account, since Mr. Kummer's sentence was shorter than those others. However, the Court also noted that there was evidence that Mr. Kummer had a major impaired driving incident on his driving record previously for which he had not received criminal charges, and further evidence that his passengers had told him to slow down. The Court felt these should have been weighted more strongly by the defendant, and thus upheld the sentence. Read-the-whole-case file: 3. A readable example of sentence analysis.

Healey v. Lakeridge Health Corporation. A class action where large numbers of people were exposed to two patients with tuberculosis. None of the appellants tested positive for TB, but alleged that being advised of their potential exposure and the need for testing caused them mental anxiety, suffering and distress which, they admitted, fell short of a recognizable mental illness. Their claim was dismissed when Lakeridge successfully moved for summary judgment and the trial judge granted it on the basis that Lakeridge owed no duty of care to prevent psychological injury, and that further negligence law offers no compensation for psychological injury that is not a recognized psychiatric illness.

The Court dismissed the appeals. Firstly, they disagreed with the trial judge by arguing that Lakeridge did in fact owe a duty of care to its patients to not inflict psychological injury on them. The Court then reaffirmed the need for the appellants to demonstrate that the psychological injury was a recognized psychiatric illness, although it also admitted that this was not a hard requirement and that allowances could be made in rare exceptions. However, the importance of the recognized illness threshold was stressed. Read-the-whole-case rating: 2.

- Christopher Bird, Toronto
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