David R. McCaskill

The defendant, a subcontractor specializing in underground construction and grouting, was charged with three counts under the Occupational Health and Safety Act (OHSA) following the death of a worker and serious injury to another when a drill rig collapsed at a Toronto Transit Commission subway extension project at York University.

The charges alleged failures to provide an adequate work platform for the drill rig, to ensure the platform could support loads in accordance with good engineering practice, and to operate the machine in accordance with the manufacturer's manual.

The court found the defendant guilty of Count 5 (failure to design an adequate work platform by failing to identify soil bearing capacity as required by manufacturer specifications) but acquitted on Counts 6 and 7.

The court determined that while the defendant transmitted manufacturer specifications to the general contractor, it failed to follow up and verify that the soil's bearing capacity had been adequately assessed before operating the rig.

The defendant, Advanced Construction Techniques Ltd., was charged with three counts under the Occupational Health and Safety Act related to a drill rig collapse that resulted in a fatality.

The defendant brought a motion for a stay of proceedings and alternatively for a mistrial, alleging that the Crown breached its disclosure obligations by changing its position on whether it would call LiDAR (Light Detection and Ranging) evidence.

The Crown had initially advised that the LiDAR scan would not form part of its case, but later decided to call the evidence well into the trial.

The court found a Charter breach regarding the right to make full answer and defence but declined to grant a stay or mistrial.

Instead, the court excluded the LiDAR evidence under section 24(2) of the Charter as the appropriate remedy.

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 defendant employer was charged under the Occupational Health and Safety Act following a fatal boat crash that killed two guests and injured an employee guide.

The Crown alleged the employer failed to maintain the boat's steering friction adjuster and failed to ensure the guide used an engine shut-off lanyard.

The court acquitted the defendant on both counts.

The court found reasonable doubt regarding whether the loose steering was caused by a lack of maintenance or operator preference.

Furthermore, the court held that the requirement to use protective devices 'as prescribed' strictly means prescribed by regulation, and no such regulation existed for lanyards in the guiding industry.

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.

A guest at the appellant's resort drowned in an unattended indoor swimming pool.

A Ministry of Labour inspector ordered the resort to report the death under s. 51(1) of the Occupational Health and Safety Act, which requires reporting when a person is killed or critically injured from any cause at a workplace.

The Ontario Labour Relations Board and the Divisional Court upheld the order, finding the pool was a workplace because employees sometimes worked there.

The Court of Appeal allowed the appeal, holding that this interpretation was unreasonable as it would lead to absurd results.

The Court held that s. 51(1) requires a reasonable nexus between the hazard giving rise to the death or injury and a realistic risk to worker safety at the site.

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.

The Crown appealed the dismissal of three counts under the Occupational Health and Safety Act against a general contractor and a subcontractor following a workplace fatality.

The trial judge had dismissed the counts on the basis that they were duplicitous and failed to disclose an offence.

The Court of Appeal allowed the appeal, finding that the trial judge confused overlapping counts with duplicitous ones, and erred in collapsing the information.

A new trial was ordered on the dismissed counts.

The applicant resort sought judicial review of an Ontario Labour Relations Board decision upholding an inspector's order.

The order required the resort to report the drowning of a guest in an unsupervised swimming pool under s. 51(1) of the Occupational Health and Safety Act.

The Divisional Court upheld the Board's findings that 'person' includes non-workers and that the swimming pool was a 'workplace' because workers perform duties there, even if none were present during the incident.

The application for judicial review was dismissed.

Two organizations, Conservation Ontario and the Ontario Association of Chiefs of Police (OACP), brought motions for leave to intervene in a judicial review concerning the interpretation of the workplace injury reporting requirements under s. 51(1) of the Occupational Health and Safety Act.

The court granted intervenor status to Conservation Ontario, finding it could provide a broader context regarding the operation of recreational facilities without expanding the record.

The court dismissed the OACP's motion, as it sought to introduce new issues and factual assertions that were not before the original decision-maker.

The applicants, a natural gas utility and a locator company, sought leave to appeal a Superior Court decision that ordered a new trial on charges under the Occupational Health and Safety Act and the Technical Standards and Safety Act.

The charges arose from a fatal natural gas explosion caused when an excavator struck an unmarked pipeline.

The Court of Appeal dismissed the application for leave to appeal, finding that the proposed grounds of appeal did not raise questions of law alone that were essential in the public interest or for the due administration of justice under section 131 of the Provincial Offences Act.

The Crown in an Occupational Health and Safety Act prosecution came into possession of a defence investigation report protected by solicitor-client and litigation privilege.

The justice of the peace stayed the charges, finding a breach of the defendants' Charter rights.

The summary appeal judge set aside the stay, holding that excluding the report from evidence was a sufficient remedy.

The Court of Appeal allowed the appeal and restored the stay of proceedings, holding that prejudice is presumed when the Crown obtains privileged defence documents, and the Crown failed to rebut this presumption.

The appellant company was charged under the Occupational Health and Safety Act following a workplace accident where an employee was injured using a table saw.

The trial judge stayed the charges, finding the appellant's right to a fair trial under s. 11(d) of the Charter was irreparably prejudiced because a potential defence witness (a supervisor) died before charges were laid.

The provincial offences appeal court lifted the stay.

The Court of Appeal dismissed the appeal, holding that the appellant failed to establish actual prejudice, as there was no evidence the deceased witness would have materially assisted the defence, and actual prejudice cannot be presumed from the mere fact of lost evidence.

The appellant employer was charged under the Occupational Health and Safety Act after an employee was injured by a machine.

The justice of the peace dismissed the charges because the Crown failed to provide authoritative definitions or expert testimony for technical terms like 'pinch point' and 'lock-out'.

The summary conviction appeal judge allowed the Crown's appeal and ordered a new trial.

The Court of Appeal dismissed the employer's appeal, agreeing that the justice of the peace erred in principle by requiring expert testimony when lay witnesses had provided evidence on the meaning of the terms.

IARW Insurance Company Limited settled a claim against its insured, Trenton Cold Storage Limited, and sought contribution from St. Paul Fire and Marine Insurance Company, which had issued an umbrella excess liability policy to Trenton.

The trial judge found both insurers liable to share the settlement and costs equally.

On appeal, the Court of Appeal held that IARW's policy provided primary coverage, while St. Paul's policy was a true umbrella policy providing only excess coverage.

As IARW's primary limits were not exhausted, St. Paul had no obligation to contribute to the settlement or the defence costs.

The appeal was allowed and the cross-appeal dismissed.