Daniel Kleiman

This appeal concerned the interpretation of "energized exposed parts of electrical equipment" under the Occupational Health and Safety Act, R.S.O. 1990, c.

O.1, specifically O. Reg. 213/91, ss. 184(1) and 190(4), following a worker's arc flash injury on a construction project.

The Court of Appeal for Ontario found that the appeal judge erred in her interpretation of s. 190(4), concluding that the actus reus for that offence was established, as the provision applies when work entails exposing ordinarily energized parts.

However, the Court upheld the acquittals for s. 184(1), finding the Crown failed to prove the temporal link between exposed parts and uncontrolled room access.

The Court also accepted a concession regarding the s. 187 due diligence defence.

The matter was remitted for determination of due diligence and sentence appeals for ss. 190(4) and 187.

An appeal of a stay of proceedings granted under s. 11(b) of the Canadian Charter of Rights and Freedoms in a workplace fatality case.

The respondents were charged with offences under the Occupational Health and Safety Act following the death of a worker at a gold mine.

The trial was scheduled to begin approximately three months beyond the 18-month presumptive ceiling established in R. v. Jordan.

The application judge stayed the charges, finding the Crown had failed to develop and follow a concrete plan to minimize delay in this particularly complex case.

The Court of Appeal allowed the appeal, finding the application judge had misinterpreted the particularly complex case exception by using the presumptive ceiling as a benchmark for assessing the Crown's conduct, rather than assessing whether the Crown reasonably attempted to minimize delay occasioned by the case's complexity.

An appeal by the Ministry of Labour from a provincial offences appeal court decision that reduced sentences imposed on a small furniture warehouse company and two of its directors for Occupational Health and Safety Act violations.

The defendants pleaded guilty to failing to provide fall protection equipment and safety training to an epileptic employee who fell to his death from an elevated order picker.

The sentencing judge imposed a $250,000 fine on the company and 25-day intermittent sentences on the directors.

The appeal judge reduced these to a $50,000 fine and $15,000 fines respectively.

The Court of Appeal dismissed the Crown's appeal, finding that while the appeal judge made errors in principle regarding moral blameworthiness and the rarity of incarceration for regulatory offences, the sentences ultimately imposed were not demonstrably unfit.

The court affirmed that moral blameworthiness is a relevant sentencing consideration for regulatory offences and that incarceration is not per se unavailable for first offenders, but upheld the reduced sentences based on changed circumstances and the principle of restraint.

The Crown sought leave to appeal a decision staying regulatory charges under the Occupational Health and Safety Act on the basis of unreasonable delay contrary to s. 11(b) of the Charter.

The charges arose from a workplace fatality at a gold mine where a worker was poisoned by cyanide.

The Ontario Court of Justice found that the net delay of 23 months exceeded the presumptive ceiling of 18 months and that the Crown failed to develop and follow a concrete plan to minimize delay.

The Superior Court dismissed the Crown's appeal.

The Crown sought leave to appeal to the Court of Appeal on four grounds relating to the calculation of delay and the application of the Jordan framework.

The Crown appealed a decision staying charges against the respondents under the Occupational Health and Safety Act due to unreasonable delay under section 11(b) of the Charter.

The trial judge found a 23-month delay and concluded the Crown failed to develop and follow a concrete plan to minimize delay in a complex case.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the Crown's failure to secure a trial date in a timely manner and its problematic case management fell below the standard required by Jordan.

Appeal of sentences imposed on a corporation and two directors for violations of the Occupational Health and Safety Act following the death of a worker who fell from an elevated order picker platform.

The trial judge imposed fines of $125,000 on each count against the corporation and 25 days intermittent incarceration on each director.

The appellants challenged the sentences as excessive.

The appellate court allowed the appeal and substantially reduced the sentences, finding that imprisonment was inappropriate for first-time offenders in regulatory matters and that the fines were demonstrably unfit and outside the acceptable range for similar offences.

The Meaford and District Fire Department was charged with three counts under section 25(2)(h) of the Occupational Health and Safety Act following injuries to two firefighters during a structure fire at Reeds Restaurant on September 9, 2009.

After a directed verdict motion, two charges were dismissed.

The remaining charge alleged the defendant failed to activate an accountability system to track firefighters entering the burning structure.

The court found that while the accountability system was not fully implemented according to the defendant's own Standard Operating Guidelines, an accountability system was in fact activated in various forms at the scene.

The Crown failed to prove beyond a reasonable doubt that no accountability system was activated, as particularized in the charge.

The court dismissed the remaining charge and acquitted the defendant.

The Meaford and District Fire Department faced three charges under section 25(2)(h) of the Occupational Health and Safety Act arising from injuries to two firefighters at a structure fire on September 9, 2009.

The charges alleged failures to: (1) activate an accountability system to track firefighters; (2) maintain effective supervision through a command post; and (3) establish a Rapid Intervention Team.

Following the Crown's case, the defendant brought a motion for a directed verdict of acquittal.

The court granted the motion on counts 4 and 6, finding insufficient evidence on the particulars alleged, but dismissed the motion on count 1, finding evidence capable of supporting a conviction.