COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bondfield Construction Company Limited, 2022
    ONCA 302

DATE: 20220414

DOCKET: C68507

Feldman, van Rensburg and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Bondfield Construction
    Company Limited, J.M.R. Electric Ltd.,

and
    Toromont Industries Ltd.

Respondents

Daniel Kleiman and Alessandra Hollands, for the
    appellant

Robert E. Hutton and Ciara L. Pittam, for the respondent
    J.M.R. Electric Ltd.

Susan L. Crawford, for the respondent Toromont
    Industries Ltd.

No one appearing for the respondent Bondfield
    Construction Company Limited

Heard: November 2, 2021 by video conference

On appeal from the judgment of Justice Christine E.J. Malott of the
    Ontario Court of Justice, dated December 2, 2019, allowing an appeal from the
    convictions entered by Justice of the Peace Maureen Ryan-Brode, dated May 5,
    2017.

van Rensburg J.A.:

A.

OVERVIEW

[1]

This

is an appeal by Her Majesty the Queen in Right of Ontario
    (the Crown), with leave, from a judgment allowing appeals from convictions of
    offences under the
Occupational Health and Safety Act
,

R.S.O.
    1990, c. O.1 (the OHSA), that were prosecuted by the Ministry of Labour.

[2]

The charges arose after a field service technician on a construction
    project was severely burned by an arc flash while cleaning an energized part of
    a switchgear cabinet using a paintbrush with a metal band. After having worked
    on de-energized cabinets, on returning from his lunch break, the worker
    inadvertently opened the wrong cabinet to clean, causing his paint brush to
    come into contact with live input stabs
[1]
at the rear of the cabinet. The work was being performed in a high-voltage
    electrical room to which the door had, at times, been propped open, permitting access
    by various tradespeople.

[3]

The appeal engages the interpretation of certain provisions of the
    regulation
Construction Projects
, O. Reg. 213/91, enacted under the
    OHSA, dealing with Electrical Hazards. The central issue is the meaning of
    energized exposed parts of electrical equipment in two regulatory provisions:
    s. 184(1), which provides that only authorized persons shall enter or be
    permitted to enter a room containing exposed energized electrical parts, and s.
    190(4), which requires that the power supply to electrical equipment be
    disconnected, locked out of service, and tagged if work is to be done on or
    near energized exposed parts.

[4]

The justice of the peace (the trial justice) convicted the three
    respondents of offences under the OHSA in relation to breaches of ss. 184(1)
    and 190(4) of O. Reg. 213/91, and also convicted the respondent Toromont
    Industries Ltd. (Toromont) of an offence relating to s. 187 of the regulation
    (respecting the use by its employee of a tool capable of conducting electricity
    so close to energized electrical equipment that it could make electrical
    contact). The trial justice acquitted the three respondents of offences
    relating to s. 182(1) of the regulation (respecting the professional
    qualifications required to connect, maintain or modify electrical equipment or
    installations).

[5]

On appeal, a judge of the Ontario Court of Justice (the appeal judge)
    overturned the convictions and entered acquittals on the offences related to
    ss. 184(1) and 190(4), after concluding the
actus reus
of these
    offences had not been established. She directed a new trial of the offence
    related to Toromonts breach of s. 187, after finding that the trial justice failed
    to consider the reasonable belief in a state of facts that, if true, would
    have rendered the act or omission innocent aspect of its due diligence
    defence. The appeal judge concluded that it was unnecessary to consider the
    other grounds for the conviction appeals, in particular other challenges to the
    trial justices assessment of the due diligence defences, and the sentence
    appeals.

[6]

I would allow the Crowns appeal in part. I have concluded that the
    appeal judge erred in her interpretation of s. 190(4), when, after concluding
    that this provision applies to energized electrical equipment that is not
    concealed or covered, and observing that the electrical parts were behind circuit
    breakers with covers, she found that the
actus reus
for the s. 190(4) offences
    was not made out. Although the appeal judge applied the same erroneous
    interpretation to the word exposed in s. 184(1), I would not interfere with
    her conclusion that the Crown failed to establish the
actus reus
of
    this offence. I would, however, not adopt all aspects of the trial justices
    interpretation of these provisions. I will explain why I agree with her
    conclusion that the
actus reus
for the s. 190(4) offence was
    established, and why, in respect of s. 184(1), I would conclude that the
actus
    reus
of that offence was not established.

[7]

As for s. 187, contrary to the appeal judges conclusion, and as
    conceded by Toromont, the trial justice did not fail to address the reasonable
    mistake of fact aspect of Toromonts due diligence defence to that charge. Because
    of her conclusion on this issue, the appeal judge declined to address the other
    errors alleged by Toromont in respect of its due diligence defence and sentence
    for the s. 187 offence.

[8]

I would accordingly set aside the acquittals for the offences in
    relation to s. 190(4), and uphold the acquittals for the offences in
    relation to s. 184(1). I would remit 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.

B.

BACKGROUND FACTS

[9]

On May 28, 2013, Stephane Audet, a field service technician, was injured
    during the construction of the Southwest Detention Centre (the SWDC) in
    Windsor, when the conductive tool he was using to clean a switchgear cabinet
    made contact with an energized part at the back of the cabinet. The respondent
    Bondfield Construction Company Limited (Bondfield)
[2]
was in charge of the project and
    had contracted the respondent J.M.R. Electric Ltd. (J.M.R.) for electrical
    installations. J.M.R., in turn, had 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 was employed by Toromont.

[10]

The switchgear involved in the incident was the electric power system
    for the SWDC, which had the ability to distribute power to the entire building
    or to isolate the power in certain areas. The equipment was located in two
    adjacent rooms on the upper level of the project: an electrical room, housing
    the switchgear and two transformers, and a generator room, housing the two
    generators. The electrical room was accessed from a main corridor through a
    double door and the generator room was, in turn, accessed through the
    electrical room.

[11]

J.M.R. was responsible for controlling access to the electrical room by
    restricting entry to authorized persons. J.M.R. posted warning signs on the
    doorway and entrance to the electrical room, and installed a lock on the double
    doors. Two of J.M.R.s master electricians and the Bondfield site
    superintendent had keys for the door. The J.M.R. master electricians visited
    the electrical room several times each day. Multiple trades entered and passed
    through the room, which was also occasionally used for storage. There was
    evidence, accepted by the trial justice, that the door was occasionally propped
    open, leaving no controls on entry into the electrical room.

[12]

The switchgear assembly measured approximately 40 feet in length and 9
    feet in height. It had an A side and a B side, that could be joined or separated
    by a middle section to operate concurrently or independently. The switchgear
    was completely enclosed on all sides and the top with sheet metal, except for
    ventilation openings and inspection windows. Doors and removable covers
    provided access to the interior, which contained various electrical devices
    including circuit breakers  electrical switches designed to open and close
    electrical circuits to control and direct the distribution of energy. The
    circuit breakers were housed in modular cabinets accessed by loosening and
    removing thumb screws on the cabinets door and then opening the door. The
    circuit breakers could be moved in and out of their cabinets on a drawer slide.

[13]

Once the switchgear and generators were installed, Toromont sent field
    service technicians to the project to commission and test the generators, which
    involved verifying their installation according to the manufacturers
    specifications and testing the functionality of different components, including
    the interconnections between the generators and the switchgear.

[14]

Audet and a second field service technician were assigned to commission
    and test the two emergency generators at the SWDC. They were authorized by J.M.R.
    to enter the electrical and generator rooms for this purpose. While both were
    experienced technicians, neither was a licensed electrician or electrician
    apprentice.

[15]

In the second week at the project, commencing on May 27, 2013, the two
    technicians started to run troubleshooting tests on the equipment. In the
    course of this testing, a number of false alarms activated in the electrical
    room. It was determined that the false alarms were caused by metal filings in
    the switchgear cabinets that had been produced when electricians drilled holes
    to install the conduits for the communication wiring connecting the switchgear
    and generators. On May 28, the technicians agreed that Audet would clean the
    affected switchgear cabinets in order to remove the metal filings.

[16]

Before Audet began working on the switchgear cabinets, the circuit
    breakers had been racked out to prevent the transmission of energy, and locked
    so that they could not be reconnected to the power supply.
[3]
The power had been shut down on the A side and middle section of the
    switchgear, while the B side remained energized. This meant that the stabs at
    the rear of some of the cabinets (not the ones Audet was supposed to enter)
    were still energized. However, all of the cabinets were racked out, locked and
    tagged in the same manner. The markers did not identify whether a cabinet was
    energized, only that it had the potential to be energized and was not to be
    racked back in. To determine which cabinets he was authorized to enter, Audet referred
    to a schematic diagram.

[17]

In the morning, Audet, while wearing proper personal protective
    equipment (PPE), conducted a voltage test on the cabinets he was intending to
    clean to confirm that they were in fact de-energized. He then removed most of the
    PPE and proceeded to clean the cabinets, using a vacuum and a paintbrush with a
    metal band. When he resumed work after his lunch break, Audet intended to clean
    one of the de-energized cabinets, but inadvertently entered an energized
    cabinet. As Audet reached to the rear of the cabinet to clean the metal
    filings, the conductive metal band on his paint brush made 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.

[18]

Following an investigation by the Ministry of Labour, the three
    respondents 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.

C.

RELEVANT STATUTORY AND REGULATORY PROVISIONS

[19]

Sections 23(1)(a) and 25(1)(c) of the OHSA prescribe the statutory
    duties of constructors and employers:

23
(1) A constructor shall ensure, on a
    project undertaken by the constructor that,

(a) the measures and
    procedures prescribed by this Act and the regulations are carried out on the
    project;

25
(1) An employer shall ensure that,

(c) the measures and
    procedures prescribed are carried out in the workplace

[20]

The relevant provisions of O. Reg 213/91 are found under the title
    Electrical Hazards, a part that comprises ss. 181 to 195.3 of the regulation.
    All three respondents were charged with having failed to comply with ss. 184(1)
    and 190(4). In particular, it was alleged that, contrary to s. 184(1), they had
    permitted unauthorized persons to enter a room with exposed energized
    electrical parts, and that, contrary to s. 190(4), they had not ensured that
    the power supply was disconnected before work was to be done on or near exposed
    energized electrical parts.

[21]

Sections 184 and 190 provide as follows (I include these sections in
    their entirety to provide necessary context):

184.
(1)
No
    person, other than a person authorized to do so by the supervisor in charge of
    the project, shall enter or be permitted to enter a roo
m or other enclosure
    containing
exposed
energized electrical parts.

(2)
The entrance to a room or other enclosure containing
    exposed energized electrical parts shall be marked by conspicuous warning signs
    stating that entry by unauthorized persons is prohibited.

190.
(1) This section applies
if work is
    to be done
on or near energized
exposed
parts of electrical
    equipment or of an electrical installation or conductor.

(2) An employer
    shall,

(a)  establish
    and implement written measures and procedures for complying with this section
    to ensure that workers are adequately protected from electrical shock and burn;
    and

(b)  make a copy
    of the written measures and procedures available to every worker on the
    project. O. Reg. 627/05, s. 7.

(3) The worker shall
    follow the written measures and procedures.

(4) Subject to
    subsection (9),
the power supply to the electrical equipment, installation
    or conductor shall be disconnected, locked out of service and tagged
in
    accordance with subsection (6)
before the work begins, and kept
    disconnected, locked out of service and tagged while the work continues.

(5) Hazardous stored
    electrical energy shall be adequately discharged or contained before the work
    begins and shall be kept discharged or contained while the work continues.

(6) The following
    rules apply to the tagging of the power supply under subsection (4):

1.  The tag shall
    be made of non-conducting material and shall be installed so as not to become
    energized.

2.  The tag shall
    be placed in a conspicuous location and shall be secured to prevent its
    inadvertent removal.

3.  The tag shall
    indicate,

i.  why the
    equipment, installation or conductor is disconnected,

ii.  the name of
    the person who disconnected the equipment, installation or conductor,

iii.  the name of
    the persons employer, and

iv.  the date on
    which the equipment, installation or conductor was disconnected.

4.  The tag shall
    not be removed unless it is safe to do so.

(7) A worker, before
    beginning work to which this section applies, shall verify that subsections (4)
    and (5) have been complied with.

(8) If more than one
    worker is involved in work to which this section applies, a means shall be
    provided to communicate the purpose and status of,

(a)  the
    disconnecting, locking out and tagging of the electrical equipment,
    installation or conductor; and

(b)  the
    discharging and containment of any hazardous stored electrical energy.

(9) Locking out is not
    required under subsection (4) if,

(a)  in the case
    of a conductor, it is adequately grounded with a visible grounding mechanism;

(b)  in the case
    of equipment or an installation,

(i)  the power
    supply is less than 300 volts, the equipment or installation was not
    manufactured with provision for a locking device for the circuit breakers or
    fuses, and a written procedure has been implemented that is adequate to ensure
    that the circuit is not inadvertently energized, or

(ii)  the power
    supply is 300 or more volts but not more than 600 volts, the equipment or
    installation was not manufactured with provision for a locking device for the
    circuit breakers or fuses, a written procedure as to how work is to be done has
    been implemented and the work is supervised by a competent worker to ensure
    that the circuit is not inadvertently energized. [Emphasis added.]

[22]

Section 187 of the regulation, which applies to an offence of which
    Toromont was convicted at first instance, is as follows:

187.
Tools, ladders, scaffolding and other
    equipment or materials capable of conducting electricity shall not be stored or
    used so close to energized electrical equipment, installations or conductors
    that they can make electrical contact.

D.

TRIAL DECISION

[23]

The trial justice 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. She also convicted Toromont of failing to ensure that the measures
    and procedures under s. 187 were carried out. In the course of her reasons, she
    concluded that the
actus reus
for each of these offences was made out.
    What follows is a brief summary of her reasons on this point. I will not address
    the trial justices treatment of the due diligence defences, which are not
    pertinent to this appeal, except briefly in relation to s. 187.

(1)

The offences under s. 190(4)

[24]

Section 190(4) requires that before the work begins, and while it
    continues, the power supply to the electrical equipment shall be disconnected,
    locked out, and tagged. The defence argued that s. 190(1) sets out necessary
    preconditions for s. 190(4), and that these preconditions did not exist in this
    case. First, they submitted that, contrary to s. 190(1), work was not to be
    done on or near energized exposed electrical parts because the part Audet
    contacted, which was located behind fastened cabinet doors, was not exposed.

[25]

In rejecting this argument, the trial justice 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.
    She concluded, I find 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: at para. 28.

[26]

The defences second argument was that the language if work is to be
    done refers to where work is
intended
to be done, and that because
    Audet knew he was not to work on energized parts, s. 190(4) did not apply. The
    trial justice rejected this argument. She held that such an interpretation would
    restrict the application of the section to instances where workers
    intentionally work on energized equipment and remove from its ambit those who
    inadvertently work on energized equipment. Instead, she viewed the phrase if
    work is to be done as importing a temporal component, which is consistent
    with section 190(4) which requires that the power supply to the electrical
    equipment be disconnected, locked out and tagged before the work begins: at
    para. 31.

[27]

The trial justice found as a fact that on May 28, 2013, Audet was
    assigned to work
near
energized equipment and as a result inadvertently
    worked
on
energized equipment: at para. 32. She found that the
    equipment was easily accessible by simply undoing two screws and therefore
    exposed to untrained people in the vicinity: at para. 32. Since 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.

(2)

The offences under s. 184(1)

[28]

Section 184(1) of the regulation mandates that only authorized persons
    may enter or be permitted to enter a room or other enclosure containing
    energized electrical parts. The trial justice 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.

[29]

The trial justice held that s. 184(1) requires that the Crown establish
    that a defendant failed to take measures and procedures to ensure that
    unauthorized persons did not enter the electrical room: at para. 60. She
    rejected the defence argument that evidence of the presence of an unauthorized
    person in the electrical room at the time of the specific offence is required in
    order to establish the
actus reus
of the offence.

[30]

The evidence was that the electrical room was used as a hallway to the
    generator room and as a storage area for equipment, and that the room was very
    busy with many tradespeople coming and going: at para. 53. The trial justice
    was satisfied on the evidence that at times on or about May 28, 2013, the door
    to the electrical room was propped open, leaving no controls on entry into the
    room: at para. 63. She therefore concluded that the
actus reus
of the s.
    184(1) offences had been established: at paras. 63-64.

(3)

The offence under s. 187

[31]

The trial justice found that, contrary to s. 187 of the regulation, Toromont
    allowed its employee to use tools capable of conducting electricity so close to
    energized electrical equipment that they could make electrical contact. This
    finding was specifically in respect of the paintbrush with a metal band that
    Audet had been using. The Crown thus made out the
actus reus
of this
    offence as well.

(4)

The due diligence defences

[32]

For the purpose of this appeal, it is sufficient to note that, after
    considering the evidence and arguments of the parties, the trial justice
    concluded 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.

(5)

The sentences

[33]

The trial justice sentenced Bondfield to a fine of $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.

E.

APPEAL DECISION

[34]

The respondents appealed their convictions and sentences on a number of
    grounds. Among other things, they argued that the trial justice erred in her
    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 accepted their
    arguments on this point. She concluded that the trial justices 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
    appeal judge accepted the respondents argument that, in accordance with the
    ordinary plain meaning of the word, exposed means not concealed or covered.

[35]

Applying this definition of exposed, and based on the evidence, the
    appeal judge concluded that the equipment had not been exposed at the
    relevant time. Further, even accepting the trial justices definition of
    exposed, the appeal judge reasoned that the equipment was not exposed because
    it was not easily accessible to unauthorized persons. The appeal judge 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: at p. 11.

[36]

The appeal judge concluded 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. In light of this conclusion, she set
    aside the convictions and entered acquittals for all of the respondents in
    relation to ss. 184(1) and 190(4). She noted that it was unnecessary to
    consider the other grounds of appeal argued by the respondents, including with
    respect to due diligence and their sentence appeals.

[37]

The appeal judge, apparently accepting an argument raised by Bondfield,
[4]
set aside Toromonts conviction in relation to s. 187 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. She ordered a new
    trial on the s. 187 charge. It was therefore unnecessary to consider the other
    grounds of appeal raised by Toromont, including its sentence appeal.

F.

ISSUES ON APPEAL TO THIS COURT

[38]

The Crown moved for leave to appeal to this court pursuant to s. 131 of
    the
Provincial Offences Act
, R.S.O. 1990, c. P.33. In granting leave, Juriansz
    J.A. framed the first issue on appeal as follows: 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 interpretation of
    these provisions, including their use of the word exposed, is central to this
    issue.

[39]

Juriansz J.A. found that a number of the grounds of appeal that the
    appeal judge determined were unnecessary to consider are closely related to
    this central issue, namely: (a) whether proof of the presence of an
    unauthorized person is an essential element of the
actus reus
in s.
    184(1); (b) whether the phrase if work is to be done in s. 190(1) creates a precondition
    before there is a requirement to disconnect, lock out of service, and tag the
    power supply to the electrical equipment, installation or conductor; and (c)
    the impact of worker error, if any, in determining whether the
actus reus
of the offence related to s. 190(4) has been proven. He directed that the
    respondents might advance these related arguments on the appeal to this court.

[40]

The second issue on appeal, as identified by Juriansz J.A., 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.

[41]

At the hearing of the appeal before this court, Toromont conceded the
    second issue. Toromont accepts the Crowns position that the appeal judge erred
    in law in overturning its conviction under s. 187 of O. Reg. 213/91 on the
    basis that the trial justice had not addressed this aspect of the due diligence
    defence. I agree. When her reasons are read as a whole, it is clear that the
    trial justice, as she stated she had done, addressed and dismissed both parts
    of Toromonts due diligence defence. I would accordingly allow the Crowns
    appeal on the second ground.

[42]

Only the first issue remains to be determined on its merits in this
    appeal: whether the appeal judge erred 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, because of the meaning she attributed to the word exposed.
    In relation to s. 184(1), the respondents also renew their argument, advanced
    at first instance, that proof of the presence of an unauthorized person is an
    essential element of the
actus reus
in s. 184(1).

[43]

The parties agree that, if the Crown is successful in its appeal, the
    remaining issues that the appeal judge did not address  in respect of the
    respondents due diligence defences and sentence appeals  should be remitted
    to another appeal judge of the Ontario Court of Justice for determination.

G.

POSITIONS OF THE PARTIES

[44]

The central issue on this appeal is the proper interpretation of ss. 190
    and 184 of O. Reg. 213/91. This is a question of law, which is subject to
    review on a correctness standard. Findings of fact are reversible only where a
    palpable and overriding error has been established:
Housen v. Nikolaisen
,
    2002 SCC 3, [2002] 2 S.C.R. 235, at paras. 8, 10.

[45]

Dealing first with s. 190(4), the Crown submits that the trial justices
    finding that Audet was assigned to work
near

exposed energized
    equipment relied on a purposive interpretation to the word exposed as meaning
    easily accessible in the specific context of a dangerous high voltage
    electrical room, and is correct. The Crown contends that the appeal judges
    interpretation of exposed as not concealed or covered would render the
    provision virtually meaningless, as electrical work almost always involves some
    effort by a worker to expose potentially energized parts of electrical
    equipment, an installation or a conductor, which are usually covered or
    concealed during regular use. The Crown submits that the appeal judge unduly
    restricted the application of s. 190 to situations where work is to be
    performed on energized electrical equipment that is already exposed,
    independent of a workers actions.

[46]

The Crown relies on the purpose of the OHSA, which is designed to
    protect workers from injury resulting from both advertent and inadvertent acts
    in the workplace, and submits that the intent of s. 190(4) is to require that
    the power supply to exposed energized equipment be disconnected, locked out of
    service, and tagged before the work begins, regardless of how the energized
    equipment may be or become exposed.

[47]

In the alternative, the Crown submits that, if exposed means not
    concealed or covered (the meaning given by the appeal judge), there is no
    question that Audet was working
on
exposed, energized equipment at the
    time he was injured.

[48]

The Crown submits that, once it is accepted that the parts Audet was
    working on or near in the electrical room were exposed, and the power source
    had not been disconnected, the
actus reus
of the s. 190(4) offence was
    made out.

[49]

As for the s. 184(1) offences, the Crown acknowledged in oral argument
    that the conclusion that the
actus reus
was made out depends on the
    acceptance by this court of the trial justices definition of exposed in this
    section as easily accessible. The Crown also asserts that the trial justice
    did not err in concluding that s. 184(1) does not require evidence of the
    presence of an unauthorized person in the electrical room, and that there was
    no error in the trial justices finding that the door to the electrical room
    was propped open, such that the
actus reus
of the s. 184(1) offence
    was made out.

[50]

The respondents seek to uphold the appeal judges definition of
    exposed as not concealed or covered. They assert that this definition is
    consistent with the purposes of the OHSA, which include the prohibition of
    access to dangerous electrical equipment. They argue that the trial justices
    interpretation of the term exposed at one point in her reasons as not easily
    accessible
to unauthorized persons
 (a narrower definition than the one
    the Crown seeks to uphold) cannot be correct as it is often difficult to
    determine who is an unauthorized person on a construction project.

[51]

In the alternative, the respondents submit that the court may have
    regard to the technical definition of exposed in relation to live parts in
    the
Ontario

Electrical Safety Code
, 27th ed. (Toronto:
    Electrical Safety Authority and CSA Group, 2018), as live parts that can be inadvertently
    touched or approached nearer than a safe distance by a person.
[5]
On this definition, the energized parts were not exposed because they could
    not be inadvertently touched when they were located in an electrical room, at
    the back of enclosed cabinets with warning labels, and accessible only through
    the deliberate act of undoing two thumb screws, removing the cabinet door, and
    reaching back into the cabinet.

[52]

With respect to the requirement in s. 190(1) that
work is to be done
on or near energized exposed electrical equipment, the respondents renew the
    argument made to the trial justice that it is a precondition for the application
    of s. 190(4) that the worker must have
intended
to work on energized,
    exposed electrical parts. Section 190 applies only to work that was assigned or
    planned to be performed on energized exposed parts. The work that was to be
    done by Audet was on de-energized equipment, and, as the appeal judge observed,
    he had taken active steps to defeat all precautions in place, including
    exposing the area himself.

[53]

Toromont further submits that accepting the Crowns proposed
    interpretation of the term exposed as easily accessible for the purposes of
    ss. 184(1) and 190(4) would lead to an absurd result for the construction
    industry. Toromont argues that requiring a projects entire electrical power
    system to be disconnected each time the electrical room is accessed by
    authorized personnel, which occurs multiple times per day, is plainly absurd
    and cannot reflect the intent of the legislators.

[54]

As for s. 184(1), while the appeal judge allowed the appeal of the
    convictions in respect of this section based on her definition of exposed, the
    respondents submit that the trial justice also erred in finding that the Crown
    had established the
actus reus
of the charge under s. 184(1) when she
    held that the proof of the presence of an unauthorized person in the room
    containing exposed energized electrical parts was not an essential element of
    the
actus reus
. Since there was no evidence that an unauthorized
    person was in the electrical room when the offence was alleged to have been
    committed, this alone ought to have led to acquittals for all of the
    respondents under s. 184(1).

H.

DISCUSSION

[55]

The central issue is whether the Crown established the
actus reus
of
    the offences in ss. 190(4) and 184(1) of the regulation, which depends on how
    each section is interpreted, and in particular the meaning of the word
    exposed in relation to energized electrical equipment as used in each
    section. I will begin with a brief summary of the principles of interpretation.
    Then I will turn to interpreting the two regulatory provisions, and explain why
    the
actus reus
was made out for the offences under s. 190(4), but not made
    out for the offences under s. 184(1).

(1)

The Principles of Interpretation

[56]

The proper approach to the interpretation of legislation is well-known
    and summarized in
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R.

27, at para. 21: the words of the Act are to be read in their entire
    context and in their grammatical and ordinary sense harmoniously with the
    scheme of the Act, the object of the Act and the intention of Parliament. This
    approach applies to any question of statutory or regulatory interpretation,
    including in respect of the OHSA and its regulations: see, e.g.,
R. v.
    Dofasco Inc.
, 2007 ONCA 769, 87 O.R. (3d) 161, at para. 12, leave to
    appeal refused, [2008] S.C.C.A. No. 24;
Blue Mountain Resorts Ltd. v.
    Ontario (Labour)
, 2013 ONCA 75, 114 O.R. (3d) 321, at para. 45. However,
    these interpretive factors need not be canvassed separately in every case, and
    in any event are closely related and interdependent:
Bell ExpressVu
    Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 31.

[57]

Although all of the interpretive principles must be kept in mind when
    approaching the interpretive exercise, the starting point for analyzing
    questions of statutory interpretation is to examine the words of the provision
    in their grammatical and ordinary sense:
R. v. Conception
, 2014 SCC
    60, [2014] 3 S.C.R. 82, at para. 14. Sources for the meaning of particular
    terms may include both dictionary and judicially constructed definitions: see
R.
    v. C.D.; R. v. C.D.K.
, 2005 SCC 78, [2005] 3 S.C.R. 668, at para. 28.

[58]

The purpose of the legislation is also central to the interpretive
    exercise. The OHSA is public welfare legislation intended to guarantee a
    minimum level of protection for the health and safety of workers:
Dofasco
,
    at para. 16. As such, provisions of the OHSA and its regulations must be
    interpreted generously and [n]arrow or technical interpretations that would
    interfere with or frustrate the attainment of the legislatures public welfare
    objectives are to be avoided:
Ontario (Ministry of Labour) v. Hamilton
    (City)
(2002), 58 O.R. (3d) 37 (C.A.), at para. 16, leave to appeal
    refused, [2002] S.C.C.A. No. 146; see also
Ontario (Labour) v. Quinton
    Steel (Wellington) Limited
, 2017 ONCA 1006, at para. 19.

[59]

A generous interpretation, however, should not be confused with a
    limitless one:
Blue Mountain Resorts Ltd.
, at para. 26. While the OHSA
    aims to protect workers from both deliberate and inadvertent conduct, including
    accidents that result when workers make mistakes or are careless or reckless,
    it is important to remember that the OHSA seeks to achieve a
reasonable
level of worker protection, not an entirely risk-free work environment:
Dofasco
,
    at paras. 24-26;
Ontario (Ministry of Labour) v. Sheehans Truck Centre Inc.
,
    2011 ONCA 645, 107 O.R. (3d) 763, at para. 30.

(2)

Section 190(4)

[60]

Section 190 sets out a number of measures that must be taken to ensure
    worker safety. These apply, pursuant to s. 190(1), if work is to be done on or
    near energized exposed parts of electrical equipment or of an electrical
    installation or conductor. One of the measures is prescribed under s. 190(4): the
    power supply to the electrical equipment  shall be disconnected, locked out of
    service and tagged [in the prescribed manner] before the work begins, and kept
    disconnected, locked out of service and tagged while the work continues.

[61]

I begin by referring to the submission, made by the Crown in oral
    argument on this appeal, that the meaning of this section is that no work is to
    be done on live electrical equipment. I disagree. There 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. As
    such, 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.

[62]

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. The parties refer to a range of dictionary definitions, including the
    definition accepted by the appeal judge (not concealed or covered) and the
    dictionary definition accepted by the court in
R. v. Proboard Ltd.
, 1990
    CarswellOnt 4324 (Ct. J. (Prov. Div.)), in determining whether a machine had an
    exposed moving part pursuant to another OHSA regulation (laid open; rendered
    accessible or liable to action).
[6]
They also point to the technical definitions of exposed in the
Electrical
    Safety Code
. They advance arguments about the purpose of the regulation
    and the OHSA, and they argue for and against broad and narrow meanings to be
    given to the term. Essentially, the Crowns position is that an exposed
    electrical part is any part that is easily accessible, irrespective of how it
    is exposed, while the respondents assert that electrical parts must already have
    been exposed, in the sense of uncovered or capable of being inadvertently
    touched, before the section can apply.

[63]

It is sometimes helpful to consider dictionary definitions of a term, but
    in this case, such definitions shed little light on the meaning of the term
    exposed in context. I agree, however, 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
.
The
Electrical Safety
    Code
is a technical document that
    describes safety standards for the installation and maintenance of electrical
    equipment. It offers two definitions that depend on
whether exposed
    is used in relation to wiring methods or live parts. Exposed in relation
    to wiring methods means not concealed; whereas exposed live parts (which is
    the same as energized parts) are live parts that can be inadvertently
    touched or approached nearer than a safe distance by a person, and the term is
    applied to parts not suitably guarded, isolated, or insulated.

[64]

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.

[65]

Accordingly, 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.

[66]

Section 190(1) states that the section applies if work is to be done on
    or near energized exposed parts of electrical equipment. It goes on in the following
    subsections to prescribe various measures for worker safety. These include the obligation
    of an employer to establish and implement measures and procedures for complying
    with the section to ensure that workers are adequately protected from
    electrical shock and burn, and to make a copy available to every worker on the
    project: s. 190(2); the requirement that workers follow the written measures
    and procedures: s. 190(3); the requirement, subject to certain exceptions, that
    before the work begins and while it continues, the power supply to the
    equipment be disconnected, locked out of service and tagged: s. 190(4); and the
    requirement, before the work begins and while it continues, to adequately
    discharge or contain hazardous stored electrical energy: s. 190(5).

[67]

I pause here to address a point made in argument in relation to
    Toromonts submission that for work to be done on or near energized
    electrical equipment, a worker must have been directed or authorized to work on
    energized equipment. I agree with the trial justice that, if the measures
    under s. 190 applied only to work intentionally done on energized electrical
    equipment, the section would be deprived of its meaning. Rather, I agree with
    her that if work is to be done imports a temporal requirement, in the sense
    that it prescribes various preventive measures that must be in place before
    work begins on energized electrical equipment, and while it continues. Among
    other things, s. 190(4) requires that, before the work is performed, the power
    supply will have been disconnected, locked out and tagged, and that it will
    remain that way while the work continues.

[68]

In other words, 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.

[69]

When considered in the context of s. 190 and what it requires, as well
    as its purpose, it is not difficult to attribute meaning to the term exposed.
    The intention is to protect workers who are working on or near exposed electrical
    parts from the risk of shock or burn. The only reasonable interpretation of
    this section, which is faithful to its wording, is that the prescribed measures
    must be taken whether the electrical parts are already exposed before the work
    begins, or whether the parts will be exposed in the ordinary course of the
    work, that is, as the work is to be done. In addition, the on or near
    wording in s. 190(1) makes it clear that the prescribed preventive measures are
    to be taken to prevent a workers inadvertent exposure to electrical hazards,
    including by coming too close to live parts that are near where work is to be
    done, even if the work was not to be done on such parts.

[70]

When looked at this way, it is clear that the appeal judges 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. Her interpretation would mean that the measures prescribed by s. 190
    would only be required in respect of electrical parts that were already uncovered
    when the work began. Indeed, adopting this definition, s. 190 would not have applied
    to the work Audet was assigned to perform, notwithstanding that in order to
    carry out the work, he had to reach inside the cabinets and clean the area of
    the input stabs, which were ordinarily energized.

[71]

There can be no question that work was to be done by Audet on (and near)
    energized exposed electrical parts, such that the power supply to the cabinets
    he was assigned to access, as well as those nearby, had to be disconnected
    before the work began and while the work continued. Instead, while all of the
    circuit breaker cabinets were identically racked out (i.e., disconnected from
    the input stabs at the back of the cabinet) and tagged, the power supply to the
    input stabs was disconnected only for the circuit breaker cabinets on which Audet
    was assigned to work, and not for those nearby.

[72]

In my 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. Where it is not reasonably possible to
    disconnect the equipment from the power supply, s. 191 of the regulation
    prescribes different and additional precautionary measures that must be in
    place, including that the worker possess the qualifications prescribed by s.
    182(1).

[73]

The appeal justice was wrong to treat the removal of the cover on the
    front of the circuit breaker cabinets as Audet having taken active steps to
    defeat all precautions in place and expose the area himself. In order to
    clean inside the circuit breaker cabinets, Audet had to remove the cabinet
    covers. The removal of a cover by loosening thumb screws was not, as the
    respondents suggest, akin to removing a guard from a piece of equipment. The
    cover did not act as protection against accidental exposure during the course
    of the workers work. It simply enclosed the live electrical parts within the
    circuit breaker cabinet. The parts were exposed to workers who had been
    assigned to work inside the circuit breaker cabinets, because their work entailed
    the removal of the cabinet covers.

[74]

It follows that it is an error to focus only on the circuit breaker
    cabinet that Audet unintentionally entered. Rather, what must be considered is
    the work that was to be done by Audet that day. He was to work on electrical
    parts that were ordinarily energized and that would be exposed during the course
    of his work. While doing this work, he would be vulnerable to the hazards of
    electrical shock and burn that the preventive measures in s. 190 are meant to
    address.

[75]

A number of the measures prescribed by s. 190 were in place to prevent
    electrical shock and burns to workers before the work began. The circuit
    breaker cabinets had been racked out (that is, disconnected from the power
    source), locked in place, and tagged. The work required Audet to reach into the
    cabinet, which housed parts that were ordinarily energized. As the trial
    justice observed, the tagging and locking out did not serve as a warning to Audet,
    because all of the cabinets were tagged and locked out in the same way, whether
    or not the power supply to the cabinets had been shut down. While the measures
    that were taken protected Audet from electrical shock or burn if he only worked
    on the de-energized cabinets, he was not protected from inadvertent injury from
    electrical parts that remained energized near where he was to work.

[76]

For these reasons, I am 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. The circuit breaker cabinets were racked out, locked and
    tagged, but the power supply to only some of the cabinets was disconnected. While
    working on the de‑energized cabinets, Audet was working near
    energized cabinets. He inadvertently entered the wrong cabinet, which remained
    connected to the power supply, not by removing a lock or guard, but by simply removing
    the thumb screws.

(3)

Section 184(1)

[77]

Section 184(1) provides that no person, other than a person authorized
    to do so by the supervisor in charge of the project, shall enter or be
    permitted to enter a room or other enclosure containing exposed energized
    electrical parts. Section 184(2) requires the entrance to such a room or
    enclosure to be marked by conspicuous warning signs stating that entry by
    unauthorized persons is prohibited.

[78]

The trial justice relied on her interpretation of exposed in relation
    to s. 190 (easily accessible to unauthorized persons) to conclude that
    the high voltage electrical room where the circuit breaker cabinets were
    located contained exposed energized electrical parts. She found that, at times
    on or about the date of the accident, the door to the electrical room had been
    propped open, leaving no controls on entry. As such, she concluded that the
actus
    reus
of the s. 184(1) offences was made out. Invoking a different
    interpretation of the term (not concealed or covered), the appeal judge
    concluded that the parts were not exposed because they were concealed behind
    cabinet doors, and the parts Audet accessed accidentally were still not
    exposed because he had taken active steps to defeat all precautions in place
    and expose the area himself. Because the room did not contain any exposed
    energized electrical parts, the
actus reus
of the offences was not
    made out.

[79]

There are two issues here. First, did the appeal judge err in concluding
    that the
actus reus
of the offence had not been made out because the electrical
    room did not contain exposed energized electrical parts? Second, does the
    Crown have to prove that there was an unauthorized person in the room in order
    to make out the offence, or is it sufficient, as the trial justice found, that
    access was permitted because the door was propped open?

[80]

As discussed earlier in these reasons, the OHSA and its regulations must
    be interpreted generously so as not to interfere with the attainment of the
    legislatures public welfare objectives:
Hamilton (City)
, at para. 16.
    Whereas s. 190 has, as its focus, the protection of a worker whose work is to
    be done on or near exposed energized electrical parts, the focus of s. 184 is
    on
unauthorized
workers who may be in the vicinity. The purpose of this
    provision is to protect workers, but particularly unauthorized workers, from
    the hazards of exposed energized electrical parts, both by restricting their
    access to the room or enclosure in which the exposed electrical parts are
    contained and by requiring that warning signs be posted at the entrance to such
    a room or enclosure.

[81]

It must be remembered that this provision is contained in a regulation
    that applies to construction projects. In this case, multiple trades, whose
    work was entirely unrelated to exposed energized parts, were required to
    perform tasks in the vicinity of the electrical room. The trial justice noted
    that the vice-president of J.M.R. testified that this was progressive
    construction and that it was not an ideal situation to have an up and running
    electrical room when other tasks needed to be completed in that room: at para.
    51. Indeed, the trial justice noted that while Audet was cleaning the
    switchgear cabinet, he was frequently interrupted by electricians or painters
    who required access to the same area to perform their work: at para. 62.

[82]

The appeal judge 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.

[83]

On the appeal, counsel for Toromont explained its position that there were
    no exposed energized parts in the electrical room at the time of the accident,
    on the basis of its proposed interpretation of exposed, but acknowledged that
    there may be circumstances where there
are
exposed energized parts in
    the room. On this appeal, it is not necessary to decide the full range of
    circumstances in which this electrical room, or any room or other enclosure,
    might contain exposed energized parts. In this case, it is sufficient that
    Audet worked on or near exposed energized parts on the day of the accident and,
    at least at the time that he was performing this work, s. 184 required that
    access to the electrical room be controlled.

[84]

The trial justice rejected the respondents argument that the
actus
    reus
of s. 184(1) requires evidence of unauthorized persons having
    been in the room at the time of the alleged offence, which, according to the
    charges listed in the Information, was on or about the 28th day of May, 2013.
    I agree. The plain language of s. 184(1) states that unauthorized persons may
    not enter or be permitted to enter. The interpretation urged by the
    respondents deprives this language of its meaning. The legislature, having used
    the disjunctive or, must have intended for the phrase be permitted to enter
    to have a different meaning than enter. I find that to establish the
actus
    reus
, it will suffice that the entrance to the room or enclosure is not
    controlled to restrict access by unauthorized persons, thus permitting
    unauthorized persons to enter, irrespective of whether an unauthorized person
    in fact enters the room. In other words, evidence of actual entry by
    unauthorized persons into the room or enclosure that contains exposed energized
    parts is a sufficient, but not a necessary, element of the
actus reus
of the offence.

[85]

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.
[7]
Following the trial justices reasoning, was the door to the electrical room
    propped open at that time?

[86]

Although the trial justice found as fact that the door to the electrical
    room had been left open at times on or about the date of the accident, the
    Crown did not lead any evidence to establish that the twin elements of the
actus
    reus
converged: first, that the room contained exposed energized
    electrical parts and, second, that
while
it contained such parts, the
    respondents failed to prohibit unauthorized persons from the room. Although the
    door to the electrical room had been propped open at times, leaving no controls
    on entry into the room, the Crown failed to establish that this ever occurred
while
the room contained exposed energized parts  that is, while Audet was
    performing his cleaning work on or near exposed energized parts. Further, the
    Crown led no evidence that there were any exposed energized parts in the room
    at any time other than when Audet performed his work that day. Therefore, on
    this record, the temporal link between the two essential elements has not been
    established, and the
actus reus
has not been made out.

[87]

In oral argument, the Crown acknowledged that for the
actus reus
of
    the offences under s. 184(1) to have been proven on the evidence before the
    court, it would be necessary to accept a broad definition of exposed as
    easily accessible. In other words, the Crowns position is that the
    electrical room contained exposed energized electrical parts because the live
    parts could be easily accessed by removing the front covers from the circuit
    breaker cabinets. Therefore, the room always contained exposed energized
    parts and any lapse in the prohibition of unauthorized persons from the room
    would have contravened s. 184(1). The Crown noted in oral argument that
    this was the basis on which it argued the s. 184(1) offences at first instance,
    and acknowledged that it had not asserted that s. 184 was contravened only at
    the moment that the circuit breaker cabinets were accessed by Audet. According
    to the Crown, its main concern was for the s. 190 offences, and the s. 184
    offences were peripheral charges that were not causally connected to what
    happened to Audet that day.

[88]

I note that, arguably, the respondents acted as though s. 184(1) applied
    to the high voltage electrical room at all times. According to the trial
    justices reasons, the electrical room was locked, and efforts were made to
    control unauthorized access. The site superintendent for Bondfield gave
    evidence that access was controlled by J.M.R. The trial justice recounted that [h]e
    testified that the electrical room was high voltage and therefore dangerous and
    access needed to be restricted: at para. 50. J.M.R.s representative gave
    evidence that he came by the electrical room a few times a day to check that
    the door was locked, and that no one would be in the electrical room unless
    authorized: at para. 51. A J.M.R. electrician confirmed that access to the room
    was via a key, and that if a J.M.R. foreman saw the door ajar, they would lock
    it: at para. 54. This was a high-voltage electrical room that was effectively treated
    as being out of bounds for unauthorized persons.

[89]

Nevertheless, the onus is on the Crown to prove beyond a reasonable
    doubt the
actus reus
of the offence under s. 184(1), including that,
    on or about May 28, 2013, while there were exposed electrical parts in the
    electrical room, the respondents failed to ensure that measures and procedures
    were in place to limit access to that room to persons authorized by the
    supervisor in charge of the project. The Crown failed to establish that while
    Audet performed his work on the switchgear that day, access to the room was not
    controlled. It also failed to establish that the room contained exposed
    electrical parts at any time other than when Audet performed his work.
    Therefore, I am not satisfied that the
actus reus
was made out by the
    Crown, and I would dismiss the Crowns appeal in relation to the s. 184(1)
    offences.

I.

DISPOSITION

[90]

For these reasons, I would allow the appeal in part. I would set aside
    the acquittals for the offences in relation to s. 190(4) of O. Reg. 213/91. I
    would uphold the acquittals for the offences in relation to s. 184(1) of the
    regulation. I would remit 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.

Released: April 14, 2022 K.F.

K. van Rensburg
    J.A.

I agree. K. Feldman
    J.A.

I agree. Coroza
    J.A.

[1]
A stab is a thick, conductive, metal bar located at the back of the switchgear cabinet.
    Input stabs transmit energy into the breaker, and output stabs transmit energy
    from the breaker into the building.

[2]
Bondfield
    did not participate in the appeal to this court. The court was advised by
    Bondfields in-house counsel that as a result of the ongoing
Companies Creditors Arrangement Act
proceedings and the terms of the Amended and Restated Initial Order dated April
    3, 2019, Bondfield [would] not be participating in the appeal.

[3]
When racked in, conductive spring-loaded fingers on the breakers connect to
    stabs at the rear of the cabinet, allowing for the transmission of energy,
    while racking out ensures that the fingers are separated from the stabs at
    the rear of the cabinet, preventing the transmission of energy.

[4]
The appeal judge suggested this was an argument made by Toromont. However,
    Toromonts counsel on appeal to this court advised that the argument had in
    fact been raised by Bondfields counsel.

[5]
The
Ontario Electrical Safety Code is the
    Canadian Electrical Code, Part I (CSA C22.1-18)
, as amended by the
Ontario Amendments to the Canadian Electrical
    Code Part I, C22.1-18
: see
Electricity
    Safety Code
, O. Reg. 164/99, s. 1.

[6]
In
Proboard
, the court determined
    whether a machine had an exposed moving part pursuant to s. 28 of
Industrial Establishments Regulation
,
    R.R.O. 1980, Reg. 692 (now s. 24 of
Industrial
    Establishments
, R.R.O. 1990, Reg. 851, enacted under the OHSA).

[7]

Although Audet said there were various people in the
    electrical room when he was working on the switchgear cabinets, there was no
    evidence that any of these people were not authorized by the supervisor in
    charge of the project.


COURT OF APPEAL FOR ONTARIO

CITATION: 202135 Ontario Inc. v. Northbridge
    General Insurance Corporation, 2022 ONCA 304

DATE: 20220419

DOCKET: C69643

Feldman, Pepall and Favreau JJ.A.

BETWEEN

202135
    Ontario Inc. cob Helping Hands Daycare,

841986 Ontario Limited and
    2433845 Ontario Inc.

Applicants (Respondents)

and

Northbridge General Insurance
    Corporation

Respondent (Appellant)

Andrew A. Evangelista, Jennifer L. Kent
    and Nikki Dehnashi, for the appellant

Danielle Muise, for the respondents

Heard: March 16, 2022 by video conference

On appeal from the order of Justice Susan
    Vella of the Superior Court of Justice, dated June 14, 2021.

Feldman J.A.:

Overview

[1]

The respondents operate seven daycare centres
    called Helping Hands outside the Toronto area. Their business at the seven
    locations was insured through a Business Choice Policy from the appellant
    Northbridge from February 2020 to February 2021. The policy included a special
    endorsement to cover business losses arising from a pandemic. As the seven
    locations were closed as a result of the COVID-19 pandemic from March 17, 2020
    to June 22, 2020, the respondents made a claim for business losses under the
    pandemic coverage provision.

[2]

The issue on the application and on this appeal
    is the proper interpretation of the $50,000 per policy period limit of
    liability clause in the endorsement, and whether it applies as a global total
    for the seven locations, or whether it means $50,000 per location, for a total
    exposure of $350,000.

[3]

The application judge found the limit of
    liability clause to be ambiguous, but determined that the ambiguity was
    resolved when read in the context of the policy as a whole. Properly
    interpreted, she concluded that the limit of liability clause provides coverage
    of $50,000 on a per location basis. In my view, the limit of liability clause
    is not ambiguous. However, I agree with the application judges conclusion
    regarding its meaning. Therefore, based on the analysis set out in the
    following reasons, I would dismiss the appeal.

Facts

[4]

The respondents seven daycare centre locations
    in the region around Toronto were insured for property and business losses under
    a policy from the appellant Northbridge for the period from February 3, 2020 to
    February 3, 2021.

[5]

The business loss portion of the original
    insuring agreement is contained in Part II of the policy, and originally did
    not include coverage in the case of a pandemic. That coverage was added by a
    special endorsement titled the A.D.C.O. Program Endorsement, which amended the
    Part I  Property Insured, Part II  Business Income, and Part III  Commercial
    General Liability coverages.

[6]

The indemnity agreement in the original policy
    provides:

1. INDEMNITY AGREEMENT

We will pay for your loss of business
    income, your incurred necessary extra expense, or loss of rental value
    during the Period of Indemnity resulting from covered direct physical loss
    subject to the provisions and limitations as applicable to the coverage specified
    on the schedule in this Part. The covered direct physical loss must occur
    at a scheduled risk location that has a limit specified on the schedule.

[7]

The limit of liability provision in the original
    policy had been revised in previous policy years and read as follows during the
    relevant year:

1.
Part II Section 2. Limit of Liability is deleted and replaced with
    the following:

The most we will pay under this Part is your
    Actual Loss Sustained of business income.
[1]

[8]

The schedule that is referred to in the
    indemnity agreement is attached to the declaration page of the policy. It is
    called the Part I & II Coverage Schedule. There is a separate schedule page
    for each of the respondents seven locations. Each schedule page lists each of
    the types of coverage that are contained in the policy, together with the
    aggregate liability limit for each head of coverage, the deductible for
    each one, and the annual premium for each one. An example for the daycare
    centre location at 743 Kingston Road in Pickering is reproduced below:

Coverage

Aggregate Liability Limit

Deductible

Annual Premium

Business Personal Property

Breakdown of Business Personal
          Property:

Equipment
          $23,390

Office Contents
          $327,500

Tenants/Owners Improvements $25,000

$375,890

$1,000

Included

Equipment Breakdown

$375,890

$1,000

Included

Business Income  Actual Loss
          Sustained

Period of Indemnity: 12 Months

Included

Outdoor trees, shrubs, plants

$25,000

$1,000

Included

Debris Removal

$100,000

$1,000

Included

Professional Fees

$50,000

$1,000

Included

Sewer Backup

$2,500

Included

Outdoor Property

$100,000

$1,000

Included

Master Key

$25,000

$1,000

Included

Cyber Event Expense

$30,000

$1,000

Included

EDP Equipment, Data and Media
          Breakdown

$50,000

$1,000

Included

CBC 100 Earthquake

3% $100,000

Included

CBC 101 Flood

$10,000

Included

CBC 106 Stated Amount Co-Insurance
          Clause

Expiry February 3, 2021

$375,890

Included

BI-Off Premises Heat, Power, Gas,
          Water

Waiting period: 24 Hours

$100,000

Included

CBC 215 Actual Loss Sustained

Included

[9]

The
A.D.C.O.
    Program Endorsement deletes certain sections of the Part II  Business Income
    section of the policy that excluded coverage for a pandemic. The endorsement
    adds that coverage as part of an extension of coverage for Outbreak &
    Negative Publicity. The relevant portion of the endorsement, including the
    limit of liability clause, provides:

1. DELETED EXTENSIONS OF COVERAGE

Part II Section 6. Extensions of Coverage
    (j) Negative Publicity
and
(k) Outbreak Extra
    Expense
are deleted in their entirety.

2. ADDITIONAL
    EXTENSIONS OF COVERAGE

The following Extensions of Coverage are added
    to
Part II Section 6. EXTENSIONS OF COVERAGE:

(l) Outbreak & Negative Publicity

(i) Indemnity Agreement:

We agree to extend
    the insurance provided by
Part II  Business Income
to apply to your
    loss of business income including incurred necessary extra expense
    resulting from interruption of or interference to your business operations at
    your scheduled risk location directly as a result of:

(1) A pandemic
    outbreak declared by Civil Authority or public health authority;

(iv) Limit of Liability:

The most that we will pay under this Extension
    of Coverage in any one policy period is $25,000 or as otherwise indicated on
    the schedule
.

[10]

The parties agree that the stated limit of
    $25,000 is an error and that the actual limit of liability was $50,000.

[11]

Due to the COVID-19 pandemic, all seven of the
    respondents locations were closed from March 17, 2020 to June 22, 2020. The
    respondents claimed coverage of $50,000 for the pandemic business loss coverage
    for each of their seven insured locations, for a total of $350,000. The
    appellant insurer responded that the limit of liability was $50,000 in
    aggregate for all insured locations. The respondents therefore commenced the
    application under appeal for a determination of the proper interpretation of
    the limit of liability clause for the extended coverage for pandemic business
    income loss.

The Findings of the Application Judge

[12]

The application judge first summarized the
    principles of insurance contract interpretation articulated by the Supreme
    Court of Canada in its decisions in
Ledcor Construction Ltd. v. Northbridge
    Indemnity Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23,
Consolidated-Bathurst
    v. Mutual Boiler
, [1980] 1 S.C.R. 888,
Reid Crowther & Partners
    Ltd. v. Simcoe & Erie General Insurance Co.
, [1993] 1 S.C.R. 252, and
Progressive
    Homes Ltd. v. Lombard General Insurance Co. of Canada
, 2010 SCC 33, [2010]
    2 S.C.R. 245. She then turned to the provisions of the policy and determined
    that the limit of liability clause under the extended coverage for pandemic
    loss is ambiguous, and could apply either to each location separately, or as an
    aggregate for all locations. Reading the contract as a whole and referring to
    other clauses in the contract, the application judge resolved the ambiguity in
    favour of the respondent insured. She also added that if she was incorrect, then
    the
contra proferentem
rule should be applied against the appellant insurer.
    In the result, she found that the $50,000 limit of liability for pandemic
    business losses applied to each business location separately.

Standard of Review on Appeal

[13]

The parties both submit that the standard of
    review is correctness, on the basis that the insurance policy is a standard
    form policy:
Ledcor
, at para. 4. To clarify, the insurance policy under
    review is clearly a bespoke policy that includes and excludes defined coverages
    for specified amounts in respect of each of the respondents seven business
    locations. However, what is urged upon the court is that the clauses within the
    policy are standard, unmodified clauses that are also offered to similar
    businesses. In that way, they are in a standard form, and their interpretation
    will apply to the same clauses as they may appear in other policies and have
    precedential value. In addition, there is no meaningful factual matrix that is
    specific to the parties to assist the interpretation process. On this basis, I
    accept that it is appropriate to apply the correctness standard of review.

Issue on Appeal

[14]

The issue on this appeal is whether the
    application judge erred in law in her interpretation of the limit of liability
    clause contained in the Outbreak & Negative Publicity coverage extension
    for business losses suffered during a pandemic.

Analysis

[15]

The appellant acknowledges that the application
    judge identified and applied the correct legal principles of insurance contract
    interpretation from the case law.

[16]

The application judge summarized the rules of
    interpretation of insurance policies from the case law in the following way:

a)

The court must first determine whether the language of the insurance
    policy is unambiguous, within the contract as a whole. If there is no
    ambiguity, effect must be given to that clear language.

b)

However, if the policy language at issue is ambiguous, the court
    must apply the general principles of contractual interpretation to resolve that
    ambiguity. This framework includes the principles that: the interpretation
    should be consistent with the reasonable expectations of the parties so long as
    that interpretation is supported by the language of the policy; the
    interpretation should not give rise to results that are unrealistic or that the
    parties would not have contemplated in the commercial atmosphere in which the
    insurance policy was entered into; and the interpretation should be consistent
    with the interpretation of similar insurance policies;

c)

If the ambiguity is unresolved after the application of the general principles
    of contractual interpretation, then the court should apply the doctrine of
contra
    proferentem
to construe the policy against the insurer. This is a course
    of last resort. The corollary of this rule is that coverage provisions in
    insurance policies are to be interpreted broadly, whereas exclusion or limiting
    clauses are to be interpreted narrowly.

[17]

She also added that: 1) the interpretive
    principles should not be used to create an ambiguity; 2) some imprecise
    language does not necessarily mean there is ambiguity when the contract is read
    as a whole; and 3) an ambiguity requires two reasonable meanings that each make
    sense within the policy read as a whole:
Progressive Homes
, at paras.
    22-23;
Surespan Structures Ltd. v. Lloyds Underwriters
, 2021 BCCA 65,
    at para. 88;
Sabean v. Portage La Prairie Mutual Insurance Co.
, 2017
    SCC 7, [2017] 1 S.C.R. 121, at para. 42.

[18]

The appellant submits that the application judge
    erred in law by finding that the limit of liability clause is ambiguous and by
    resolving that ambiguity in favour of the respondents. Its further position is
    that the limit of liability clause is clear and unambiguous when read on its
    own, and that it means that the total maximum coverage is $50,000 per policy
    period in aggregate for all seven locations.

[19]

The respondents agree that the clause is
    unambiguous when read in the context of the policy as a whole, but they say that
    it unambiguously provides that the limit of liability is $50,000 per location. In
    the alternative, if it is ambiguous, when read in the context of the policy as
    a whole, the ambiguity is resolved in favour of the respondent insureds
    interpretation. In the further alternative, if the clause is ambiguous, it
    should be read
contra proferentem

against
    the insurer.

[20]

I agree with both parties that the limit of
    liability clause is not ambiguous when read in the context of the policy as a
    whole. I set out again the indemnity and limit of liability provisions of the pandemic
    coverage extension contained in the A.D.C.O. Program Endorsement:

2. ADDITIONAL EXTENSIONS OF COVERAGE

The following Extensions of Coverage are added
    to
Part II Section 6. EXTENSIONS OF COVERAGE:

(l) Outbreak & Negative Publicity

(i) Indemnity Agreement:

We agree to extend
    the insurance provided by
Part II  Business Income
to apply to your
    loss of business income including incurred necessary extra expense
    resulting from interruption of or interference to your business operations at
    your scheduled risk location directly as a result of:

(1) A pandemic
    outbreak declared by Civil Authority or public health authority;

(iv) Limit of Liability:

The most that we will
    pay under this Extension of Coverage in any one policy period is [$50,000] or
    as otherwise indicated on the schedule
.

(1)

The internal wording of the limit of liability
    clause is unambiguous

[21]

First, looking only at the words of the limit of
    liability clause itself, the maximum amount is stated to be or as otherwise
    indicated on the schedule. As in this policy there are seven separate
    schedules, one for each scheduled risk location, the reference to the schedule
    can only mean to each individual schedule for each risk location.

[22]

As a result, the maximum limit amount can be
    altered in each schedule separately. More significantly, the clause
    contemplates an individual maximum that could be referenced in each schedule.

[23]

As set out in para. 8 above, the only reference
    in the schedules to a limit of liability for business losses is the Actual
    Loss Sustained, which applies to the business losses not referred to in the
    extended endorsement.
[2]

[24]

Thus, the internal wording of the limit of
    liability clause does not support the meaning suggested by the appellant
    insurer, that the maximum liability amount of $50,000 in the policy period is
    an aggregate amount for all locations. The appellant is effectively asking the
    court to read out or ignore the words or as otherwise indicated on the
    schedule that follow $25,000 (or $50,000, as the parties agree the clause
    should state), in order to substantiate its submission on the meaning of the
    clause.

(2)

The wording of the indemnity provision that the
    limit of liability clause applies to provides further support

[25]

The respondent insureds interpretation is
    reinforced by the language of the indemnity agreement for pandemic loss coverage
    in the A.D.C.O. Program Endorsement. In accordance with the interpretive
    principles from the governing case law, as both the indemnity agreement and the
    limit of liability clause are subclauses of the Outbreak & Negative
    Publicity extension of coverage, they are to be read together. While said in
    the context of an exclusion clause, Rothstein J.s statement in
Progressive
    Homes
, at para. 27 is relevant here: Exclusions do not create coverage
    they preclude coverage when the claim otherwise falls within the initial grant
    of coverage. Exclusions, however, should be read in light of their initial
    grant of coverage.

The appellant submitted the opposite: that the
    clauses must be read separately. However, counsel provided no case law to
    support that proposition.

[26]

The indemnity agreement provides coverage for
    loss of business income as a result of a pandemic outbreak at your scheduled
    risk location. The respondents submit that because the indemnity agreement
    refers to scheduled risk location in the singular rather than the plural, it is
    referring to each single scheduled risk location (i.e., each of the seven
    daycare centres). Therefore, the limit of liability, which refers to and
    imposes a limit on the indemnity obligation, also applies to each single scheduled
    risk location. Had the policy used the plural, scheduled risk locations, then
    it would be arguable that the limit of liability could be interpreted to apply
    to all risk locations in the aggregate.

[27]

In response to this argument, the appellant relies
    on the definition of scheduled risk location in the Definitions section of
    the Policy, and specifically s. 16(x), which provides: Scheduled risk
    location means: risk location(s) specified on the schedule.

[28]

The appellant submits that the definition
    defines the singular to include the plural, that they are therefore
    interchangeable, and that accordingly, no significance can be attributed to the
    use of the singular in the indemnity agreement policy language.

[29]

I would not accept this submission or the appellants
    interpretation of the definition. The definition merely explains that one looks
    to the schedule to find the scheduled risk location or locations, whichever may
    be applicable. It does not mean that the singular and plural forms of
    scheduled risk location are to be interpreted interchangeably when used in
    the policy and related endorsements.

(3)

This interpretation does not require the
    inclusion of the word each

[30]

The appellant also argues that the court is
    reading the word each into the reference to business losses at your
    scheduled risk location, and that without reading in the extra word, the
    singular reference cannot be given that meaning.

[31]

I would reject this submission. There is no
    ambiguity in the language used. The singular reference to scheduled risk
    location indicates that the indemnity is for losses at the location listed on
    the schedule. In this case, there are seven separate schedules, one for each
    risk location. It is not necessary to read in the word each because the use
    of the singular performs the same function.

[32]

Similarly, the appellant noted two coverage
    extensions that do use the word each in the limit of liability wording. It
    submits that this language is what is required to extend coverage to each risk
    location on an individual basis. The limit of liability clauses in the two
    extensions state as follows:

(c) Personal Effects (including Volunteers)
amended limit:

The most that we will pay under this Extension
    of Coverage in respect of any one officer, director, partner, employee or
    volunteer workers is $10,000 for any one occurrence.

The most that we will pay under this Extension
    of Coverage at each scheduled risk location in any one policy period is
    $25,000, or as otherwise indicated on the schedule.

(z) Property of Tenants or Registered
    Guests of a Hotel or Apartment or Members, Guests and Residents of Health Care
    Facilities

The most that we will pay under this Extension
    of Coverage at each scheduled risk location per covered tenant, guest, member
    or resident is as specified on the Coverage Summary, or as otherwise indicated
    on the schedule for any one occurrence.

The most that we will pay under this Extension
    of Coverage at each scheduled risk location in any one policy period is as
    specified on the Coverage Summary, or as otherwise indicated on the schedule.

[33]

The appellant suggests that these limits clearly
    apply on a per scheduled risk location basis and that, in contrast, the limit
    of liability for pandemic business loss lacks clear language to the same
    effect. I disagree. While the use of the word each is consistent with a limit
    that applies on a per location basis, as noted above, it is not a necessary
    word. The clause could have said at a scheduled risk location or at the
    scheduled risk location or otherwise indicated the singular, and it would
    have had the same meaning: that it applies on an individual basis.

(4)

This interpretation is consistent with the
    policy read as a whole

[34]

These indemnity and limit of liability provisions
    are consistent with the structure of the entire policy, which insures each
    location for its losses, as defined precisely in the separate schedules.

[35]

For example, part of the A.D.C.O. Program
    Endorsement deals with extensions of coverage under Part I of the policy, which
    deals with insurance of property, as distinguished from insurance of business
    losses in Part II. Under Part I  Property Insured, there is an automatic
    blanket limit clause which provides:

Automatic Blanket Limit Clause

The most that we will pay under any one or a
    combination of the following
Part I  Property Insured 8. Extensions of
    Coverage
is $600,000 for any one occurrence in any one policy period. The
    Automatic Blanket Limit applies separately to each scheduled risk location.

[36]

As it indicates, the limit of liability of
    $600,000 in a policy period applies to each scheduled risk location. The word
    each is used in this provision, but it is in the limit of liability wording
    rather than in the indemnity wording. In my view, the use of the word each here
    is consistent with the operation of the policy which effectively insures the
    risk locations as separate businesses.

(5)

There are no other provisions that support the
    appellants interpretation

[37]

While the appellant pointed to other provisions
    of the policy to try to assist in interpreting the limit of liability clause at
    issue, counsel did not identify another one in the policy with identical
    wording or effect that would assist in the interpretation of the limitation of
    liability clause in issue on this appeal.

[38]

For example, the appellant notes that there are
    only two other extensions of coverage for business losses that contain a limit
    of liability clause per policy period, and that both of them provide a limit
    per occurrence. These provisions that apply per occurrence are not
    comparable and do not assist the appellant in the interpretation of the pandemic
    limit of liability clause. The first, for Emergency Vacating Expenses, uses
    the same language in the limit of liability as the clause in question apart
    from the per occurrence limitation. It provides: The most that we will pay
    under this Extension of Coverage is $50,000, or as otherwise indicated on the
    schedule for any one occurrence. Just like the clause in question, this
    limit of liability uses the singular form of the schedule and supports the
    finding that the limit applies per location. The second extension, for Tenant
    Lease Cancellation Expense, does not address scheduled risk locations at all.

[39]

The appellant also identified some extensions of
    coverage under Part I  Property Insured that contain identical or near
    identical language to the subject clause. However, there is no indication in
    those clauses that they are intended to apply on an aggregate basis. For
    example, the coverage extension for Pollutant Cleanup and Removal provides
    that [t]he most that we will pay under this Extension of Coverage in any one
    policy period is as specified on the Coverage Summary, or as otherwise
    indicated on the schedule. Again, the singular is used.

[40]

Another extension, for Furs, Fur Garments,
    Jewels, and Jewellery, uses the same language in the limit of liability clause
    but refers to any scheduled risk location in the coverage extension language
    that precedes it:

We agree to extend the insurance provided by
Part
    I Section 2. Insured Property (b) Business Personal Property
to apply to
    loss of or damage by an insured peril to furs, fur garments, jewels, jewellery,
    costume jewellery, watches, pearls, precious and semi-precious stones while
    such property is at any scheduled risk location.

The most that we will pay under this Extension
    of Coverage in any one policy period is as specified on the Coverage Summary,
    or as otherwise indicated on the schedule.

[41]

The appellant submits that this coverage
    extension applies on an aggregate basis because of the use of the word any in
    the coverage language. I disagree. Read in context, the above clauses provide
    that the most that the insurer will pay is as specified on the summary or
    schedule, as long as the loss or damage occurred while the property was at one
    of the scheduled risk locations. The language of the limit of liability clause is
    as indicated on the schedule, i.e., the same as in the pandemic loss limit of
    liability: on a per location basis. The use of the word any in the coverage
    portion of the clause does not modify this unambiguous language.

[42]

In oral argument, the appellant also pointed to
    the coverage extension for Professional Misconduct Legal Expense, under Part
    III  Commercial General Liability, as an example of a type of coverage with a
    limit of liability that applies on an aggregate basis. The limit of liability
    clause under this section states:

We will reimburse you for legal expenses up
    to a maximum of $100,000 in respect to any single hearing or defence of
    action covered by this extension, or $100,000 in the aggregate in respect of
    all hearings or defences of action instituted during the period of this
    extension.

[43]

However, the indemnity provision of this
    coverage is not location specific. Instead, it applies to expenses arising
    from any hearing or in defence of any action. In addition, it uses the words
    in the aggregate. Again, this provision does not assist the appellant in
    interpreting the pandemic business loss clause.

[44]

In sum, the appellant has not pointed this court
    to any provisions of the insurance agreement or the applicable endorsements
    that provide coverage based on losses or damage at a scheduled risk location
    where the limit of liability for such coverage applies to all locations on an
    aggregate basis, rather than on a per location basis.

[45]

As a result, the plain language of the limit of
    liability clause, as reinforced by the coverage extension and the structure of
    the policy as a whole, makes clear that the pandemic business loss coverage
    limit applies to each of the respondents seven daycare locations separately.

(6)

The premium allocation bolsters the per location
    interpretation

[46]

Finally, the respondents also rely on the fact
    that the premium they paid for the extended coverage was based on and divided
    among the seven risk locations in different amounts. I agree that this further
    supports the interpretation that it was the intention of the parties that the
    limit of liability would apply to each of the seven locations separately.

Conclusion

[47]

In my view, the limit of liability for the
    coverage extension for pandemic business losses is unambiguous when read in the
    context of the indemnity agreement and the policy as a whole, and applies to
    each scheduled risk location. As a result of my conclusion, there is no need to
    apply the
contra proferentem
rule of interpretation. While the
    application judge found ambiguity which she resolved in favour of the insured, my
    conclusion regarding the proper meaning of the clause is the same.

[48]

For these reasons, I would allow the fresh
    evidence and dismiss the appeal, with costs fixed in the agreed amount of $15,000,
    inclusive of disbursements and H.S.T.

Released: April 19, 2022 K.F.

K.
    Feldman J.A.

I
    agree. S.E. Pepall J.A.

I agree. L. Favreau J.A.

[1]

On
    appeal, the appellant brought a motion to file fresh evidence regarding which
    limit of liability provision was in effect during the relevant period. The respondents
    do not object to the fresh evidence being admitted. I accept that the relevant
    limit of liability provision was as stated in para. 7.

[2]

The
    parties did not argue that the words Actual Loss Sustained in the schedules
    should be read to modify the stated limit of liability of $50,000, as set out
    in the limit of liability clause which, again, states: The most that we will
    pay under this Extension of Coverage in any one policy period is [$50,000]
or
    as otherwise indicated on the schedule
(emphasis added).