J. Illingworth

The Ministry of Labour charged Ya Ya Foods Corp. with three offences under the Occupational Health and Safety Act following a fatal incident where a worker fell from an elevated platform.

The central issue at trial was whether Ya Ya Foods qualified as a "constructor" under the Act, as the charges were laid against them in that capacity.

Applying the "control test," the court found that the deceased worker, Melvin Joyner, had the most control over the project at the time of the incident, not Ya Ya Foods.

The court noted the lack of a clear constructor designation at the outset and the difficulties of retrospective role assignment.

Consequently, the Ministry failed to prove beyond a reasonable doubt that Ya Ya Foods was the constructor, and all charges were dismissed.

Following a successful summary judgment motion dismissing the plaintiff's claim, the defendants sought full indemnity costs of $84,327.60.

The court found that while the claim was not explicitly vexatious, the lack of evidence to support the plaintiff's position warranted an award of substantial indemnity costs to express the court's disapproval.

Applying the principle of reasonableness, the court reduced the requested amount and fixed costs at $40,000 inclusive of HST and disbursements.

Following success on a summary judgment motion, the defendants sought costs to be awarded personally against the plaintiff's lawyer, Mr. Brian MacIvor, under Rule 57.07(2).

The court clarified that such a request cannot be satisfied by usual costs submissions and requires a formal motion supported by affidavit evidence, allowing the solicitor to respond.

The court outlined the two-part test for personal costs against a solicitor, requiring that costs be incurred unnecessarily and that the court exercise its discretion.

The request for personal costs was dismissed in the context of the costs submissions, with the court directing the defendants to bring a proper motion if they wished to pursue the matter.