Adrian Miedema

In a wrongful dismissal action, the defendant employer, Bayer Inc., moved to compel the plaintiff, Lara Maalouf, to answer refused discovery questions regarding her vaccination status and views on vaccination, and for a further affidavit of documents.

The court granted the motion in part, compelling answers to the questions as they were relevant to the pleadings, particularly the employer's defence of just cause and failure to mitigate.

However, the request for a further affidavit of documents was dismissed, as the employer failed to prove the existence of unproduced relevant documents.

This case concerns an application by the accused, Taiga Building Products Ltd., for a stay of proceedings due to unreasonable delay under section 11(b) of the Canadian Charter of Rights and Freedoms.

The trial, related to an Occupational Health and Safety Act charge following a workplace fatality, spanned 11 days over nearly two years.

The court applied the R. v. Jordan framework, calculating a total delay of 23 months and 29 days.

After deducting 80 days for defence delay and 39 days for a discrete COVID-19 related event, the net delay was 610 days (20.05 months), exceeding the 18-month presumptive ceiling for the Ontario Court of Justice.

The court found the case was not particularly complex and that the delay was unreasonable, partly due to the Crown's unsuccessful expert qualification application and late disclosure.

A stay of proceedings was entered.

The Crown brought a Mohan application to qualify an expert ergonomist, Steve A. MacDonald, in line of sight, visibility, and human factors, in a case where the defendant was charged under the Occupational Health and Safety Act following a workplace fatality.

The defendant opposed the application.

The court applied the two-stage Mohan/White Burgess test for expert evidence admissibility.

It found the expert's opinion unnecessary as the trier of fact could form conclusions without it, given the direct eyewitness testimony and video evidence.

Furthermore, the court determined that the expert was not properly qualified in the specific narrow area of expertise due to limited prior experience in LOS assessments and reliance on unverified and contradictory factual assumptions.

The court concluded that the risks of admitting the unreliable and unnecessary evidence outweighed its potential benefits, and therefore dismissed the application to qualify the expert witness.

The Ministry of Labour appealed a decision denying its motion to amend an information to substitute the correct defendant company.

The Ministry had charged Ash-Mar Construction Limited (operated by the father) instead of 1819315 Ontario Inc. operating as Ash-Mar Construction (operated by the son) following a workplace incident where a framing wall collapsed and injured a worker.

The lower court denied the amendment citing the Ministry's lack of diligence and the expiry of the Occupational Health and Safety Act limitation period.

The appellate court allowed the appeal, finding the lower court applied too narrow an interpretation of prejudice under section 34(4) of the Provincial Offences Act and erred in refusing the amendment.

The Ministry of Labour charged Thomson Metals and Disposal GP Inc. with three offences under the Occupational Health and Safety Act arising from a workplace accident on June 4, 2014, involving a Caterpillar 325B excavator.

The operator's cab became separated from the machine, injuring the worker.

The charges alleged: (1) failure to ensure the equipment was equipped with a seat belt; (2) failure to ensure the operator cabin was securely fastened to the chassis; and (3) failure to take reasonable precautions to ensure bolts and washers met manufacturer's specifications.

After a four-day trial, the court dismissed all three charges, finding that the Crown failed to prove the actus reus beyond a reasonable doubt.

The court determined that there was insufficient evidence that the excavator was originally equipped with a seat belt, and that the bolts and washers were consistent with manufacturer's specifications at the time of purchase.

A corporate defendant brought a motion under s. 11(b) of the Charter of Rights and Freedoms seeking a stay of proceedings based on unreasonable delay.

The defendant was charged with three counts under the Occupational Health and Safety Act arising from a workplace injury.

The court considered whether the Jordan framework applied to regulatory matters and corporate accused, and whether the net delay of approximately 25 months exceeded the 18-month presumptive ceiling for provincial court trials.

The court found that Jordan applies to both regulatory prosecutions and corporate defendants, that the delay was presumptively unreasonable, and that the Crown failed to establish exceptional circumstances to justify the delay.

The court granted the stay of the remaining charge.

The plaintiff commenced an action for wrongful dismissal and served a Rule 49 offer to settle early in the litigation.

The defendant accepted the offer two years later, shortly before trial, agreeing to pay costs on a partial indemnity scale up to the date of the offer and on a substantial indemnity scale thereafter.

The parties could not agree on the quantum of costs.

The court assessed the plaintiff's bill of costs, noting some excessive time docketed for discovery and pre-trial preparation, and fixed total costs at $119,123.45.

Avenue Building Corporation was charged under the Occupational Health and Safety Act with failing to ensure that equipment being moved was moved in a manner that did not endanger a worker, following an incident where an employee broke his leg when a 4x4 he was using to move a wall form broke.

The trial judge found the corporation guilty, concluding that the corporation failed to exercise due diligence by allowing workers discretion in tool selection without adequate training and supervision, and by failing to include written procedures for moving wall forms.

On appeal, the appellate court found that the trial judge misapprehended the specific charge and failed to properly apply the due diligence analysis to the correct actus reus, warranting a new trial.