E.J. Battiston

The defendant employer was charged with failing to ensure that measures and procedures prescribed by Ontario Regulation 213/91 were carried out in a workplace, contrary to section 25(1)(c) of the Occupational Health and Safety Act.

A worker was fatally injured when a curb machine tipped over during unloading from a float trailer.

The Crown proved the actus reus beyond a reasonable doubt, establishing that the worker was endangered by the movement of the equipment.

However, the defendant successfully established the defence of due diligence on a balance of probabilities, demonstrating that it took all reasonable steps to prevent the incident.

The court found that the worker was highly experienced, had successfully unloaded the same machine 27 times previously, and deviated from established safety procedures on the day of the incident by failing to use the wooden block ramp and leaving the machine's controls on automatic rather than manual.

The charge was dismissed.

This endorsement addresses costs for several prior motions.

The plaintiffs (Nicholson Group) were awarded costs for a successful motion for leave to amend their statement of claim.

The Janza group and Horbatiuk defendants were awarded costs for their successful motions regarding abandoned motions and contempt proceedings.

Andrey Pinsky was awarded costs against the plaintiffs for successfully opposing an indemnity motion brought by Mr. Nicholson.

The court applied principles under the Courts of Justice Act and Rule 57.01(1), declining substantial indemnity where no egregious conduct was found.

In complex multi-party litigation involving competing applications and actions, the moving parties sought advance production of documents prior to cross‑examinations on affidavits and before the close of pleadings.

The court rejected the argument that counsel had reached a binding agreement requiring early documentary production and held that no such agreement existed.

The court further held that under the Rules of Civil Procedure, affidavits of documents are generally not required until after pleadings close, absent exceptional circumstances where production is essential to plead.

Motions to disqualify counsel were not equivalent to summary judgment proceedings and therefore did not justify early disclosure.

The court denied the request for advance production and issued directions governing examinations and interim injunctive relief pending further motions.