Ontario (Minister of Labour) v. George Smith Trucking Ltd., 2005 FC 392

Date: 20050321

Docket: T-968-04

Citation: 2005 FC 392

Ottawa, Ontario, March 21, 2005

Present:           THE HONOURABLE MR. JUSTICE BEAUDRY                                    

BETWEEN:

                                                        MINISTER OF LABOUR                    

                                                                                                                                            Applicant

                                                                           and

GEORGE SMITH TRUCKING LIMITED,

FLORENCE SMITH, GEORGE SMITH

and NICK TALAGA

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

[1]                This is a motion brought by the Minister of Labour for a contempt order against the respondents pursuant to Section 467 of the Federal Court Rules SOR/1998-106 for disobeying a Court Order prohibiting the use of a "Hyster" forklift until all Directions issued by the applicant are complied with.

ISSUE

[2]                Are the respondents, George Smith Trucking Limited and George Smith guilty of contempt?

[3]                For the following reasons, I must answer this question positively.

BACKGROUND

[4]                George Smith Trucking Ltd. (the employer) is an interprovincial trucking firm, located at 1975 Brookside Boulevard in the City of Winnipeg, which transports goods in containers, either by large highway trailers or intermodal shipping containers. It is a federally regulated employer. George Smith is the director and secretary of the company, and is the directing mind of the trucking operation. David Smith, the son of George Smith, is the assistant manager of the company.

[5]                The Minister is responsible for the administration and enforcement of the Canada Labour Code, R.S.C. 1985, c. L-2 (Code) and the related Regulations respecting Occupational Safety and Health (Regulations) made under Part II of the Code.

[6]                As a federally regulated interprovincial trucking firm, George Smith Trucking Ltd. is governed by the Code and the regulations made pursuant to it and is an "employer" within the meaning of the Code, and therefore, subject to Directions issued by the applicant.

[7]                In March 2004, Andrew McKechnie, a Health and Safety Officer (HSO) employed by Human Resources and Skills Development Canada (HRSD) - Labour Programs, began an inspection of the employer's premises in order to inspect a forklift that was reported to be in an unsafe working condition.

[8]                As a result of that inspection, HSO McKechnie delivered a Direction to the employer, on April 1, 2004, pursuant to paragraph 125(1)(k) of the Code, requiring the repair of the defective forklift. Further investigation led HSO McKechnie, on April 5, 2004, to issue a Direction (A-4) to the employer, pursuant to section 145 of the Code, requesting that the forklift in question not be used with the fork extension in place nor prior to correcting the steering problem.

[9]                On April 19, 2004, HSO Alex Kozubal issued a further Direction (A-10) to the employer regarding the bent Mast Rail and worn Mast chain on the "Hyster" forklift. The Direction required that the forklift be removed from service until repaired or properly modified by a qualified engineer, and prohibited employees from operating it.

[10]            On May 3, 2004, HSO McKechnie observed, photographed and videotaped the forklift being operated by David Smith in contravention of the Directions issued in April. Therefore, on May 18, 2004, the applicant filed an application seeking an injunction preventing the respondent from using or operating the "Hyster" forklift until all outstanding Directions had been complied with.

[11]            On May 26, 2004, the respondents, George Smith Trucking Limited and George Smith, through their solicitor, provided consent to the application by way of consent letter stipulating that they will cease and desist from any use or operation of the "Hyster" forklift.   

[12]            On June 3, 2004, an Order (A-7) was issued by Justice Pinard of the Federal Court granting the injunction based on the terms of the consent of the parties. Despite the Court Order, the respondents continued to operate the "Hyster" forklift.

[13]            On June 28, 2004, the applicant filed a motion for a contempt hearing. This was heard by teleconference on July 5, 2004, and an order was issued by Justice Heneghan of the Federal Court granting a show cause hearing.    

[14]            Due to the dangerous condition of the forklift and the continued breach of the injunction, HSO McKechnie was extremely concerned for the safety of those who operated and worked around the forklift. Therefore, on July 19, 2004, he requested an interlocutory injunction be filed for the immediate sequestration of the forklift in order to ensure the protection and the safety of those who operate and work around the forklift until the application for contempt was disposed of.

[15]            On July 21, 2004, Justice Shore granted the injunction and ordered that the "Hyster" forklift be sequestered in the custody of the applicant.

[16]            On October 5, 2004, the judicial administrator of the Federal Court ordered that the contempt hearing take place in Winnipeg, Manitoba, on Thursday, January 13, 2005.   

ANALYSIS

[17]            Contempt has been defined by Lord Russell of Killowen in R. v. Gray, [1900] Q.B. 36 at 40 as follows:

Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke L.C. characterised as "scandalising a Court or a judge."

This classic statement has been quoted in many Canadian leading cases such as [1953] 1 S.C.R. 516">Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516. This definition was later detailed in section 466 of the Federal Court Rules. It reads as follows:

[18]            In the present case, did the respondents, George Smith Trucking Limited and George Smith, act in contravention to rule 466(b) by disobeying an order of the Court, an injunction issued by Justice Pinard on June 3, 2004, prohibiting the use or operation of the "Hyster" forklift until all outstanding directions issued pursuant to the Canada Labour Code relating thereto have been satisfied?

[19]            In the case at hand, the respondents were made aware of the particulars of the contempt following Justice Heneghan's Order.

[20]            The applicant made a full disclosure of all the evidence against them before the hearing. On the date of the trial, I mentioned to George Smith that he could not be compelled to testify (rule 470 (2)) but he could call witnesses on his behalf. George Smith Trucking Limited was not represented at the hearing because a motion by George Smith for an order allowing him to represent his company was dismissed by Justice O'Keefe on August 11, 2004, and no counsel was present at trial.

[21]            The evidence and standard of proof at a hearing for contempt are provided by rule 469 "a finding of contempt shall be based on proof beyond reasonable doubt".

[22]            The evidence submitted by the applicant could not be more convincing. The respondents were videotaped using the "Hyster" forklift on many occasions. The HSO, Andrew McKechnie, is the first one to have videotaped the "Hyster" forklift being used in contravention of the Directions issued in April and despite tags affixed to the forklift with the mention "Danger, Do Not Use (exhibit A-5).

[23]            Following this event, the HSO officer filed a motion requesting an interlocutory injunction from the Court to ensure that the respondents would respect the Directions. The respondents were fully aware of the Order and agreed not to use the "Hyster"forklift. It is upon this agreement that Justice Pinard issued the following Order:   

The respondents, their respective agents, servants and/or any persons acting under the instructions of any of them will cease and desist from any use or operation of the HYSTER forklift identified in the application filed by the applicant on May 17, 2004, until all outstanding Directions issued pursuant to the Canada Labour Code relating thereto have been satisfied.

As indicated in the applicant's counsel's letter to the Court dated June 2, 2004, "the granting of [this] consent order on the Application also disposes of the Notice of Motion filed by the Applicants (sic) given that it sought essentially the same relief as the Application".

[24]            However, regardless of the injunction, in June 2004, George Smith and George Smith Jr., in contravention of the Order, were videotaped (exhibit A-1) by a licensed private investigator, Ian Houston. This was also confirmed by Andrew McKechnie. Alex Kozubal, a health and safety officer saw the video (exhibit A-1) and testified that he recognized George Smith Jr., assistant general manager to George Smith Trucking Limited as one of the drivers. On cross-examination, the respondent, George Smith admitted that he personally contravened the Order.

[25]            With such evidence, I was not convinced by David Voth, a welder, who testified on behalf of the respondents that the forklift was capable of lifting an empty 20 foot container of approximately 5,000 pounds. The certificate of integrity (exhibit DGS-1) prepared by the respondents' welder and sent in July 2004 was analyzed and determined not to have met the requirements of the directions issued. The applicant's representatives sent a letter dated July 21, 2004 to the respondents to that effect (exhibit A-9).

[26]            In the present case, it is clear that the respondents were aware of the Directions issued by the HSO and the injunction ordered by the Court. Despite the fact that they were ordered by the Court not to use the "Hyster" forklift unless all Directions had been complied with, the respondents deliberately defied the Court Order. I am of the opinion that the respondents willfully breached the Court Order despite the danger to the public and the employees' safety. Therefore, I am satisfied beyond a reasonable doubt that the respondents are guilty of contempt.

[27]            The forklift was seized on June 22, 2004, and has been in the possession of the applicant since then.

[28]            Pursuant to section 472 of the Federal Court Rules and after considering the oral submissions from the respondents (no written representations were sent to the Registry) and the oral and written submissions from the applicant on sentencing, an order will be issued as follows:

1.         George Smith Trucking Limited shall pay a fine of $5,000;

2.         George Smith shall pay a fine of $5,000;

3.         George Smith Trucking Limited and George Smith shall pay the applicant's disbursements in the amount of $5,300.99;

4.         The respondents George Smith and George Smith Trucking Limited shall pay $15,000 for costs;

5.         The respondents shall have 120 days to pay the fine, disbursements and costs;

6.         In default of paying his fine, George Smith shall be imprisoned for thirty (30) days;

7.         The applicant may file a motion after 180 days of this order to dispose of the forklift at the respondents' expense if the respondents have not complied with the directions. The respondents shall be responsible for the costs of storage since June 22, 2004 to the time that the respondents have complied with the directions or the disposal of the forklift.

                                               ORDER

THIS COURT ORDERS that:

1.         George Smith Trucking Limited shall pay a fine of $5,000;

2.         George Smith shall pay a fine of $5,000;

3.         George Smith Trucking Limited and George Smith shall pay the applicant's disbursements in the amount of $5,300.99;

4.         The respondents George Smith and George Smith Trucking Limited shall pay $15,000 for costs;

5.         The respondents shall have 120 days to pay the fine, disbursements and costs;

6.         In default of paying his fine, George Smith shall be imprisoned for thirty (30) days;

7.         The applicant may file a motion after 180 days of this order to dispose of the forklift at the respondents' expense if the respondents have not complied with the directions. The respondents shall be responsible for the costs of storage since June 22, 2004 to the time that the respondents have complied with the directions or the disposal of the forklift.

              "Michel Beaudry"                       

Judge

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-968-04

STYLE OF CAUSE:                           MINISTER OF LABOUR v.

GEORGE SMITH TRUCKING,

FLORENCE SMITH, GEORGE

SMITH AND NICK TALAGA

PLACE OF HEARING:                                 Winnipeg, Manitoba

DATE OF HEARING:                                   January 13, 2005

REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Beaudry

DATED:                                                          March 21, 2005

APPEARANCES:

Duncan Fraser                                       FOR THE APPLICANT

George Smith                                        FOR THE RESPONDENTS

(on his own behalf)

SOLICITORS OF RECORD:    

John H. Sims, Q.C.                               FOR THE APPLICANT

Deputy Attorney General of Canada

Winnipeg, Manitoba    

George Smith                                        FOR THE RESPONDENTS

(on his own behalf)

Winnipeg, Manitoba