Jeremy Warning

Great Lakes Food Company Ltd. was charged under the Occupational Health and Safety Act after a senior deckhand went overboard and was not recovered.

The Crown alleged the employer failed to provide and ensure the use of suitable cold water protective equipment.

The court found that the Crown failed to prove the actus reus of the strict liability offence beyond a reasonable doubt.

The court considered the totality of the circumstances, including the lack of evidence on industry standards for protective equipment, the unforeseeable nature of the incident, and the principle that post-incident compelled changes cannot be used as proof of the actus reus.

The charge was dismissed.

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.

The Crown appealed the acquittal of Quinton Steel on charges under the Occupational Health and Safety Act (OHSA) arising from the death of an employee who fell from a temporary welding platform.

The trial justice and summary conviction appeal judge found that the general duty clause in section 25(2)(h) of the OHSA could not be used to impose requirements beyond those specifically prescribed in the regulations.

The Court of Appeal allowed the appeal, holding that section 25(2)(h) establishes an independent duty that is not limited by the regulations, and that the trial justice erred by failing to determine whether installing guardrails was a reasonable precaution in the circumstances.

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.

The Crown prosecuted an employer for two offences under the Occupational Health and Safety Act following the fatal fall of an experienced welder from a temporary A-frame and plank platform at a height of approximately 6.5 feet.

Count 1 alleged failure to install guardrails at the open sides of a raised wood platform contrary to section 25(2)(h) of the OHSA.

Count 2 alleged failure to provide information, instruction and supervision to protect the worker from falling contrary to section 25(2)(a) of the OHSA.

The defendant did not advance a due diligence defence.

The court found that section 13 of the Industrial Establishments Regulation, which requires guardrails at open sides of raised surfaces, applies only to fixed premises attached to buildings, not to temporary mobile equipment.

Section 85 of the same regulation, which governs fall protection equipment, forms a complete code for this type of temporary platform work and does not require guardrails at heights below 3 metres.

The Crown improperly attempted to extend requirements beyond the applicable regulation through the general duty clause.

Both charges were dismissed.

The applicant employer sought a review of an Order to Pay under section 68 of the Employment Standards Act.

The workplace parties entered into Minutes of Settlement.

The Ontario Labour Relations Board ordered the disbursement of the $25,900.44 held in trust by the Director of Employment Standards to the employer, the employees, and the Consolidated Revenue Fund in accordance with the settlement.

Four directors appealed separate orders to pay issued against them under the Employment Standards Act.

Three of the directors failed to appear at the hearing, and their appeals were dismissed.

The remaining director, who appeared self-represented, entered into Minutes of Settlement with the Ministry of Labour regarding the outstanding balance of the orders to pay.

The adjudicator dismissed the remaining director's appeal subject to and in accordance with the terms of the settlement agreement.

The applicants, directors of several health centres, appealed under section 58.22(2) of the Employment Standards Act.

The matter was scheduled for a hearing, but the applicants received extremely short notice.

Several applicants wrote to the Board requesting an adjournment.

At the hearing, only counsel for the Ministry of Labour attended.

The Ministry consented to the adjournment request, and the adjudicator adjourned the hearing to a later date.

The applicant employer applied for a review of an Order to Pay under section 68 of the Employment Standards Act.

The workplace parties entered into Minutes of Settlement.

The Ontario Labour Relations Board issued an order reflecting the settlement, directing the disbursement of $672.46 held in trust to the employee, retaining a $100 administration fee, and ordering the employer to pay an additional $127.54 directly to the employee.

The applicant sought a review of an Employment Standards Officer's decision denying him termination pay.

The applicant was terminated after repeatedly refusing to wear required protective eye gear and a full face shield, despite multiple directions from the employer.

The Board found that the applicant's unjustified and unexplained refusal to wear protective health and safety equipment constituted wilful misconduct under the Employment Standards Act, exempting the employer from providing notice of termination.

The application was dismissed.

The applicant applied to review the decision of an Employment Standards Officer not to issue an order.

The applicant failed to appear at the scheduled hearing.

The responding parties moved to dismiss the application.

The Board dismissed the application due to the applicant's failure to attend.

The applicant sought a review of an Employment Standards Officer's refusal to issue an order to pay $40,000 in wages against his former employer and its directors.

The employer was bankrupt.

The Board held that under section 68(2) of the Employment Standards Act, it lacked jurisdiction to review a refusal to issue an order against directors.

Furthermore, the Board could not issue an order against the bankrupt employer due to the Bankruptcy and Insolvency Act, and because the applicant had already settled his claim with the Trustee in Bankruptcy.

The application was dismissed.

The applicant employer appealed an Employment Standards Officer's Order to Pay regarding termination pay.

On the scheduled hearing date, neither the applicant nor the responding employee attended.

The applicant had previously indicated in writing that it would not attend and would pay the Order or settle.

At the request of the Ministry of Labour, the Board dismissed the application and confirmed the Order to Pay.

The applicants (employers) appealed an Order to Pay issued by an Employment Standards Officer.

A hearing was scheduled, but the applicants failed to attend.

After standing the matter down for 30 minutes, the Board dismissed the application due to the applicants' non-attendance.

The Board directed that the wages held in trust be remitted to the responding party employee.

The applicants appealed an Order to Pay issued by an Employment Standards Officer under section 68 of the Employment Standards Act.

A hearing was scheduled, but neither the applicants nor their representative appeared.

After waiting the standard 30 minutes, the Board convened the hearing and dismissed the application.

The Board ordered the monies held in trust to be paid out to the claimant.

The applicant employer sought a review of an Order to Pay termination pay to a former employee.

The employer argued the employee was temporarily laid off and failed to return upon recall.

The Board found that because the employer indicated the recall date was 'unknown' on the Record of Employment, the layoff became an indefinite layoff under the Employment Standards Act.

The employee was therefore entitled to treat the layoff as a termination.

The Order to Pay was affirmed.

The applicant brought an application under section 68 of the Employment Standards Act.

During the hearing, the applicant produced a lengthy summary of alleged harassment incidents that had not been previously disclosed to the employer.

The Board adjourned the hearing to allow the employer an opportunity to address the issues.

The Board also directed the applicant to provide an explanation regarding the relevance of a letter alleging operational failings by the employer, failing which references to the letter would be struck from the proceeding.