David R. McCaskill

The Court of Appeal for Ontario denied the Crown's application for leave to appeal a Provincial Offences Appeal Court (POAC) decision upholding the City of Greater Sudbury's acquittal on charges under the Occupational Health and Safety Act.

The case arose from a fatal workplace accident involving a road grader operated by a contractor.

The court found that the trial judge and POAC judge properly applied the due diligence defence and that the issues raised by the Crown did not meet the high threshold for a second-level appeal.

The decision clarifies the application of due diligence in occupational health and safety prosecutions, emphasizing that such defences must be directed at the specific violations alleged and that findings of control are primarily factual.

This is an appeal by the Crown from an Ontario Court of Justice decision that acquitted the Corporation of the City of Greater Sudbury of charges under the Occupational Health and Safety Act.

The Supreme Court of Canada had previously found the City liable as an employer and remitted the matter to this court to consider the trial judge's finding of due diligence.

The appeal court reviewed the trial judge's conclusion that the City exercised due diligence, considering factors such as the City's degree of control over the workplace, delegation of control to the constructor, evaluation of the constructor's ability, and monitoring of the work.

The court found no palpable and overriding error in the trial judge's determination that the City had exercised due diligence, and consequently dismissed the Crown's appeal.

The defendant, Cementation Canada Inc., brought a motion alleging breaches of its constitutional rights under sections 11(a) and 11(d) of the Canadian Charter of Rights and Freedoms.

The motion sought a judicial stay of three charges laid under the Occupational Health and Safety Act, arguing insufficient particulars for two counts and incomplete disclosure of several documents, including a "Director's Memo." The court dismissed the motion, finding that the charges provided sufficient particulars by referencing specific regulatory sections and that the requested disclosure items were either provided, unavailable, or not relevant to raising a reasonable doubt, particularly upholding solicitor-client privilege for the "Director's Memo." The application for costs was also denied.

A municipality contracted with a constructor to repair a water main and dispatched quality control inspectors to the project site.

A pedestrian was fatally struck by construction equipment at an intersection where required safety measures — a fence and signallers — were absent.

The municipality was charged as an employer under the Occupational Health and Safety Act for failing to ensure that prescribed regulatory measures were carried out in the workplace.

On equal division, the Supreme Court of Canada dismissed the appeal, with the majority holding that proof of control over workers or the workplace is not required to establish the actus reus of the employer's duty under s. 25(1)(c); control is relevant only to the due diligence defence.

The dissent would have either remitted the matter or restored the acquittals on the basis that regulatory measures apply only to work within the employer's sphere of control.

This case concerns an application by the accused, Taiga Building Products Ltd., for a stay of proceedings due to unreasonable delay under section 11(b) of the Canadian Charter of Rights and Freedoms.

The trial, related to an Occupational Health and Safety Act charge following a workplace fatality, spanned 11 days over nearly two years.

The court applied the R. v. Jordan framework, calculating a total delay of 23 months and 29 days.

After deducting 80 days for defence delay and 39 days for a discrete COVID-19 related event, the net delay was 610 days (20.05 months), exceeding the 18-month presumptive ceiling for the Ontario Court of Justice.

The court found the case was not particularly complex and that the delay was unreasonable, partly due to the Crown's unsuccessful expert qualification application and late disclosure.

A stay of proceedings was entered.

The Crown brought a Mohan application to qualify an expert ergonomist, Steve A. MacDonald, in line of sight, visibility, and human factors, in a case where the defendant was charged under the Occupational Health and Safety Act following a workplace fatality.

The defendant opposed the application.

The court applied the two-stage Mohan/White Burgess test for expert evidence admissibility.

It found the expert's opinion unnecessary as the trier of fact could form conclusions without it, given the direct eyewitness testimony and video evidence.

Furthermore, the court determined that the expert was not properly qualified in the specific narrow area of expertise due to limited prior experience in LOS assessments and reliance on unverified and contradictory factual assumptions.

The court concluded that the risks of admitting the unreliable and unnecessary evidence outweighed its potential benefits, and therefore dismissed the application to qualify the expert witness.

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.

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.

This appeal concerned the interpretation of "employer" under the Occupational Health and Safety Act (OHSA) following a fatal workplace incident.

The City of Greater Sudbury, which had contracted out road repairs, was acquitted at trial and on first appeal, with courts finding it was neither an "employer" nor "constructor." The Court of Appeal for Ontario reversed, holding that the City was indeed an "employer" under OHSA because its own employees (inspectors) were present and performing tasks at the project site, satisfying the first branch of the "employer" definition.

The case was remitted to the appeal court to consider the City's due diligence defence, which had not been addressed by the appeal judge.

The Crown sought leave to appeal the acquittal of the City of Greater Sudbury on charges under the Occupational Health and Safety Act arising from a fatal construction accident involving heavy equipment backing up without a signaller.

The Crown argued that the courts below erred in their interpretation of the definitions of "constructor" and "employer" under the OHSA.

The motion judge granted leave to appeal on the narrow ground that the interpretation of "employer" in the OHSA engaged a question of law alone of public interest, specifically whether a municipality contracting out infrastructure work could fall within the definition of "employer" based on the degree of control it exercises over the project.

The Crown appealed the acquittal of the City of Greater Sudbury on six charges under the Occupational Health and Safety Act, following a fatal accident at a construction site.

The trial judge found that the City was neither a "constructor" nor an "employer" under the Act, and alternatively, exercised due diligence.

The appeal court upheld the trial judge's findings, concluding that the City's oversight role for quality control did not transform it into a constructor or employer, and dismissed the appeal.

The Crown appealed a directed verdict of acquittal and judgment of acquittal issued by a Justice of the Peace on charges under the Occupational Health and Safety Act.

The defendant company operated a construction yard where an employee was fatally struck by a reversing dump truck.

The Crown established that the company violated regulatory requirements regarding signallers.

The court allowed the appeal in part and decided the outstanding issue of due diligence on the evidentiary record.

The court found that the company had established due diligence through its safety protocols, training, and monitoring procedures, despite the tragic accident.

The company was found not guilty.

The Crown appealed the acquittal of a construction company on charges under the Occupational Health and Safety Act arising from the death of an employee struck by a reversing dump truck.

The trial court had directed a verdict of acquittal on one count and dismissed the remaining three counts.

The central issue was whether the company failed to ensure that a competent signaller assisted the dump truck operator in accordance with the applicable regulations.

The appellate court found that the trial court erred in concluding that the Crown had not proven the absence of a required signaller, as the evidence established that the deceased was not exclusively performing signaller duties and was not in full view of the truck operator.

The court set aside the acquittals and remitted the due diligence defence for reconsideration.

The defendants brought a motion for a stay of proceedings based on a breach of s. 11(b) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay.

The charges arose from a stage collapse at a Radiohead concert in June 2012 that resulted in one death and injuries.

The defendants were charged in June 2013 with offences under the Ontario Occupational Health and Safety Act.

The trial commenced in November 2015 but was declared a mistrial in May 2017 when the presiding judge was appointed to the Superior Court.

The court applied the Jordan framework and found that the net delay far exceeded the presumptive ceiling of 18 months.

Although the Crown established certain discrete events and argued the case was complex, the court determined that even accounting for these exceptional circumstances, the delay remained unjustified.

The court granted the stay of proceedings for all defendants.

A provincial court judge presiding over a lengthy trial involving charges under the Occupational Health and Safety Act arising from a stage collapse at a Radiohead concert in Toronto was appointed to the Superior Court of Justice mid-trial.

The Crown argued the judge retained jurisdiction to complete the trial under the Provincial Offences Act, while the defence argued the appointment resulted in loss of jurisdiction.

The court found that the judge had lost jurisdiction to continue the trial, as the Provincial Offences Act lacks a provision comparable to section 669.3 of the Criminal Code permitting continuing jurisdiction upon appointment to another court.

A new trial was ordered.

The defendant, Matcor Automotive Inc., appealed a sentence of $270,000 (three counts at $90,000 each) imposed after conviction on three counts under the Occupational Health and Safety Act.

The conviction arose from a workplace incident in which a maintenance worker suffered catastrophic injury (paraplegia) due to inadequate training, supervision, and safety procedures regarding robotic equipment.

The appellate court dismissed the appeal, finding the sentence was fit and within the acceptable range, rejecting arguments that the sentencing judge erred in principle regarding proportionality, totality, inferences from evidence, consideration of prior convictions, and the acceptability of the sentencing range.

The defendant, a rental equipment company, was charged under the Occupational Health and Safety Act (OHSA) following a workplace fatality at a General Motors plant in St. Catharines on November 18, 2011.

The deceased worker, an employee of a contracted company, was operating an articulating boom lift rented by the defendant when he was fatally injured.

The defendant alleged the equipment was mechanically defective.

The trial, which commenced in December 2014, experienced significant delays spanning over four years and seven months from the laying of the charge in June 2012.

The primary causes of delay were Crown disclosure failures and case management issues.

The court found the delay breached the defendant's Charter right to trial within a reasonable time under section 11(b) and stayed the charge.

Defendants charged with offences under the Occupational Health and Safety Act brought applications alleging violations of their Charter right to trial within a reasonable time under section 11(b).

The court applied the new framework established in R. v. Jordan, determining that while the net delay of approximately 44 months exceeded the 18-month presumptive ceiling for Ontario Court of Justice trials, the Crown established exceptional circumstances justifying the delay.

The court found the case was particularly complex due to the nature of the evidence and issues involved, and that the transitional exceptional circumstance applied to cases in the system when Jordan was released.

The applications were dismissed.

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.