Graeme Adams

The appellant employer was convicted on appeal of an offence under the Occupational Health and Safety Act following a workplace fatality.

Before sentencing, the appellant brought an application for a stay of proceedings under s. 11(b) of the Charter, which the appeal judge summarily dismissed.

The Court of Appeal held that while the appeal judge had jurisdiction to hear the Charter application, he did not err in exercising his discretion to summarily dismiss it, as constitutional issues should only be raised for the first time on appeal in exceptional circumstances where there is no prejudice to the parties.

The appellants, an employer and a supervisor, appealed their convictions under the Occupational Health and Safety Act after a worker was seriously injured by a wood splinter ejected from an industrial saw.

The trial judge had convicted them, finding they failed to exercise due diligence because there was 'no evidence' of a system to regularly check and clean the saw's anti-kickback fingers.

The appeal court found this conclusion was unreasonable as it contradicted the uncontradicted and unrejected testimony of a worker who detailed his daily cleaning and maintenance routine.

The appeal was allowed and acquittals were entered for both appellants.