David R. McCaskill

The Ministry of Labour appealed a sentence imposed on Ontario Power Generation following a guilty plea to one count under the Occupational Health and Safety Act.

The Crown sought to challenge an interlocutory Charter ruling made at trial that had excluded evidence of worker injury as an aggravating factor on sentence.

The central issue was whether a Crown sentence appeal could be used to overturn an interlocutory ruling made during the conviction phase, particularly where the Crown had participated in the guilty plea.

The court dismissed the appeal, finding that the Crown had a reasonable alternative available—refusing to participate in the plea and calling no evidence to preserve the right to appeal—and that allowing the appeal would create procedural unfairness and inconsistent verdicts.

This is a trial decision on a voir dire regarding the admissibility of expert evidence in a prosecution under the Occupational Health and Safety Act arising from a stage collapse at a concert venue that resulted in a fatality.

The defendant Live Nation Canada Inc. challenged the qualification of two Ministry of Labour engineers to provide expert opinion evidence on the cause of the stage collapse.

The court found that both experts met the threshold requirement to testify, applying the test established in White Burgess v. Abbott and Haliburton Co. The court rejected arguments that the experts' involvement in the investigation, their employment relationship with the Ministry of Labour, and their participation in interviews with defendants undermined their independence and impartiality.

The Corporation of the City of Guelph was charged with failing to ensure that a wall in a workplace was capable of supporting all loads to which it may be subjected, contrary to section 25(1)(e) of the Occupational Health and Safety Act.

The charge arose from the collapse of a privacy wall in a women's washroom at a municipal park in 2009, which resulted in the death of a fourteen-year-old student.

The court found that the Crown failed to prove the actus reus beyond a reasonable doubt because the charging section incorporated the outdated concept of "allowable unit stresses," which had been superseded by limits states design methodology in 1997.

The court also found that even if the actus reus had been established, the City had exercised due diligence in issuing the building permit by reasonably relying on the professional stamps of the architect and engineer, and that the City was not required to conduct further investigation based on the engineer's involvement in a prior unrelated project.

The defendant, a construction company, was charged under the Occupational Health and Safety Act with failing to ensure that a temporary wooden brace used in a winch system was designed and constructed to support or resist all loads and forces to which it was likely to be subjected.

The charge arose from a fatal construction accident in which a worker died when the wooden brace failed.

The court found that the Crown failed to prove beyond a reasonable doubt that the wooden brace was inadequately designed and constructed for the likely forces it would encounter, given its intended use for achieving alignment rather than applying maximum force.

The court also found that the defendant exercised due diligence by relying on manufacturer instructions and industry standards.

The defendant was acquitted.

A construction contractor was charged with two counts under the Occupational Health and Safety Act following an accident on October 28, 2009, where a worker was struck by a falling steel beam (soldier pile) that broke free from its tack weld during a vibratory hammer operation.

The first count alleged failure to ensure adequate bracing under Ontario Regulations 213/91.

The second count alleged failure to take every reasonable precaution for worker protection under section 25(2)(h) of the OHSA.

The court dismissed the first count but convicted on the second count, finding that while the multiple-pile welding method was lawful and industry-accepted, the employer failed to take reasonable precautions by positioning workers in a danger zone without proper risk assessment or safety measures.

The Ministry of Labour charged the City of Guelph with failing to ensure a workplace wall was safe under section 25(1)(e) of the Occupational Health and Safety Act, and charged an architect and engineer with providing negligent or incompetent advice under section 31(2) of the Act.

The charges arose from a concrete wall collapse in 2009 that killed a student, five years after the project's completion in 2004.

All defendants moved to dismiss the charges as statute-barred under section 69 of the Act, which provides a one-year limitation period from the last act or default.

The court distinguished between the charges: the architect and engineer's charges were dismissed as statute-barred because their negligent advice was provided years before the collapse, while the City's charge was permitted to proceed because the employer's duty to maintain a safe workplace is a continuing obligation that extends beyond the construction phase.