Kenneth E. Jull

The Ontario Court of Justice dismissed a motion for particulars brought by The Econo-Rack Group Inc. (Konstant Manufacturing) in a prosecution under the Occupational Health and Safety Act (OHSA).

The Applicant sought particulars regarding the alleged offence under section 45(b) of Ontario Regulation 851, arguing that without such particulars they could not adequately prepare a due diligence defence.

The Court held that the charge as drafted, combined with disclosure, the Crown’s opening statement, and the Inspector’s investigative report, provided sufficient detail to ensure a fair trial.

The Court emphasized that particulars concerning the cause of the accident or the means by which the offence was committed are not required under the Provincial Offences Act and that the focus is on the employer’s failure to uphold prescribed safety measures, not on causation narrowly defined.

This decision addresses the application of s. 8 of the Canadian Charter of Rights and Freedoms in the context of workplace inspections under the Occupational Health and Safety Act (OHSA).

The applicant, The Econo-Rack Group Inc. (Konstant Manufacturing), challenged the Ministry of Labour inspector's warrantless collection of evidence following a workplace injury, alleging an unreasonable search and seizure.

The Court applied the two-step s. 8 analysis, focusing on whether a search or seizure occurred and if it was reasonable, and considered the "predominant purpose" test from R. v. Jarvis to determine if the inspector had crossed from regulatory inspection into penal investigation requiring a warrant.

The Court found that although Konstant had a reasonable expectation of privacy, the inspector's actions were authorized under s. 54 of the OHSA as part of a regulatory inspection, and no s. 8 breach occurred.

The application for exclusion of evidence and costs was dismissed.

This endorsement addresses the costs arising from a successful motion by the Halton Region Conservation Authority (HRCA) to strike an application for certiorari and prohibition brought by Gordon Baron and Lifestyles by Barons Inc. (collectively, "Baron").

Baron had been charged under the Conservation Authorities Act.

HRCA sought costs on a substantial or partial indemnity basis, while Baron proposed a significantly lower partial indemnity amount.

The court awarded HRCA $25,000 on a partial indemnity basis, finding Baron's underlying application meritless and noting inappropriate conduct, though not bad faith, on Baron's part.

The respondents sought damages arising from an interim injunction obtained by the applicant, alleging it was an excessive overreach and caused them financial harm by preventing a property sale.

The court found that proper notice was provided for the initial injunction hearing, and it did not proceed on an *ex parte* basis.

While some facts were not disclosed by the applicant, the court determined these omissions were not material to the necessity of the injunction, which was granted to maintain the status quo and protect the public interest in remediating provincially significant wetlands.

The respondents had also consented to the injunction's continuance after the initial period.

As the respondents eventually remediated the property, the merits of the underlying application for a permanent injunction were never judicially determined.

The court dismissed the respondents' motion for damages, exercising its discretion due to the respondents' inequitable conduct and the applicant's role as a public body acting in the public interest.

This endorsement addresses ongoing disagreements between counsel, leading to a civil case conference.

The parties agreed to orders for the respondents to produce a realtor's complete file and for cross-examinations to proceed with documents marked as exhibits pending privilege determination.

The court admonished counsel for their uncivil and uncooperative conduct, emphasizing that civil case conferences are not for resolving civility issues and that counsel have a strict obligation to act reasonably and collaboratively.

The court ordered that no further motions or civil case conferences could be brought without leave.

The applicants sought declaratory orders after the conservation authority cancelled a permit for their home renovation project.

The respondent brought a motion arguing the application was premature or should be transferred to the Divisional Court as a judicial review.

The Superior Court found that the application fundamentally challenged the exercise of a statutory power of decision under the Conservation Authorities Act.

Concluding that the matter was properly a judicial review and not satisfying the urgency requirement for Superior Court jurisdiction, the court ordered the application transferred to the Divisional Court.

The appellants appealed their convictions and sentences for unlawfully undertaking development within 120 metres of a provincially significant wetland without permission from the Halton Regional Conservation Authority.

The appeal addressed four main issues: the reasonableness of the convictions, alleged infringements of section 7 Charter rights (including disclosure and abuse of process), alleged infringements of section 11(b) Charter rights (unreasonable delay), and the appropriateness of the sentences imposed.

The court dismissed the appeals against conviction and the Charter applications, finding the convictions reasonable and no Charter breaches.

However, the court partially allowed the appeal against sentence, reducing one appellant's fine, vacating the other's fine and substituting a suspended sentence, and amending the probation order to a one-year term with specific conditions, while upholding the remediation order.

Other counts were conditionally stayed based on the Kienapple principle.

The appellants were convicted of two counts of breaching a regulation under the Conservation Authorities Act.

At trial, they were sentenced to fines of $5,000 each and a two-year probation order requiring reconstruction of a seawall.

The Conservation Authority appealed to the Provincial Offences Appeal Court, seeking removal of a home addition as a sentencing term.

The POAC judge allowed the appeal, set aside the original sentence, remitted the fines, and ordered removal of the addition.

The appellants appealed to the Court of Appeal for Ontario, arguing the POAC judge exceeded the scope of appellate review by reversing factual findings without identifying palpable and overriding error.

The Court of Appeal allowed the appeal, finding the POAC judge impermissibly substituted his own findings regarding whether the conduct constituted a flagrant and deliberate breach of the regulations.

The defendants brought a Charter application under subsections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms, alleging that their right to be tried within a reasonable time had been infringed due to unreasonable delay in consolidated provincial offence proceedings involving 39 defendants and 812 charges under the Conservation Authorities Act.

The court applied the analytical framework established in Regina v. Jordan, 2016 SCC 27, distinguishing between individual defendants and corporate defendants.

The court found that the individual defendants' rights had been infringed and stayed their charges, while the corporate defendants' applications were dismissed based on the principle that prejudice to fair trial rights cannot be inferred for corporations and the application of the transitional exceptional circumstance.

A ruling on a voir dire concerning the admissibility of Approximate Regulation Limit (A.R.L.) maps created by the Halton Region Conservation Authority.

The prosecution sought to admit these maps as evidence to establish the regulatory jurisdiction of the Authority over properties at 7459 Auburn Road, Milton, Ontario.

The defendants challenged admissibility on hearsay grounds.

The court determined that the A.R.L. maps, created pursuant to Ontario Regulation 162/06, constitute part of the regulation itself and are therefore admissible under section 25 of the Evidence Act as copies of regulations.

The defendants sought to amend the judge's prior reasons for dismissing their mistrial motion, specifically requesting the deletion of statements disapproving their reliance on midtrial conference discussions.

The judge had shared preliminary views during these conferences under an agreement and counsel's undertaking that such discussions would not be used as a basis for bias allegations.

The court found that the defendants and their counsel breached this agreement and undertaking by using the preliminary views as "context" for their bias claim.

The judge declined to amend the reasons, emphasizing the accountability of both judges and litigants/counsel regarding such agreements.

The plaintiff, having been awarded judgment for $687,639.50 CAD, sought prejudgment interest.

The court determined the applicable prejudgment interest rate under the Courts of Justice Act, s.127(1), to be 2.1%.

This rate was an average calculated over the lengthy period from the action's commencement in January 2006 to the date of judgment in April 2016, deemed a fairer rate given the fluctuations.

The court also specified the periods for which interest would be allowed on various components of the damages, distinguishing between "past pecuniary loss" and general damages as per s.128(3) of the Act.

The court determined the applicable exchange rate for damages previously awarded in U.S. dollars.

Pursuant to section 121(3) of the Courts of Justice Act, the court exercised its discretion to fix the exchange rates at the historical dates when the obligations to pay arose, rather than the date of payment or judgment delivery.

This approach ensured a fixed Canadian dollar judgment and placed the creditor in the position they would have been in had payments been made when due.

The total Canadian dollar award was calculated.

This decision addresses costs following a trial where the plaintiff, Mark Couper, was largely successful on a breach of contract claim, while most other claims and the defendants' counterclaim were dismissed.

The court considered principles under the Courts of Justice Act and Rules of Civil Procedure, including the result, offers to settle, complexity, and conduct of parties.

It denied substantial indemnity costs for mutual allegations of fraud and discreditable conduct, treating them as offsetting.

However, substantial indemnity costs were awarded to the plaintiff for the counterclaim due to the defendants' extraordinary non-disclosure of documents, and for the mistrial motion from the date of the plaintiff's unaccepted offer to settle under Rule 49.

The plaintiff was awarded partial indemnity costs for the main action.

This is a ruling on a preliminary motion regarding the proper categorization of party liability offences under the Provincial Offences Act.

The defendants were charged with offences contrary to the Conservation Authorities Act, both as principal offenders and as parties to the offences.

The central issue was whether party liability offences based on aiding or abetting the commission of a regulatory strict liability offence should themselves be classified as strict liability offences or as mens rea offences.

The court examined the Supreme Court of Canada's decision in La Souveraine and concluded that party liability offences based on aiding (under paragraph 77(1)(b) of the POA) should be classified as strict liability offences, while those based on abetting (under paragraph 77(1)(c)) remain mens rea offences.

A voir dire was held to determine the admissibility of lay opinion evidence from a watershed enforcement officer regarding the freshness of topsoil observed at a property.

The officer opined that topsoil was "very fresh material" based on observations of construction equipment, lack of vegetation, and crisp bulldozer tracks.

The court applied the four-element test from Regina v. Graat to determine whether the lay opinion evidence was admissible.

The court found that all four elements were satisfied: the officer was in a better position than the trier of fact to form the conclusion; the conclusion was one that persons of ordinary experience could make when combined with the officer's experiential capacity; the officer had the necessary experiential capacity despite not being an expert; and the opinion was a compendious mode of stating complex facts.

The opinion was admitted into evidence.

The defendants brought a motion for partial summary judgment seeking dismissal of portions of an oppression remedy claim on the basis that certain alleged acts were statute‑barred.

The claim arose from a long‑running business dispute in which the plaintiff alleged that the individual defendant conducted the affairs of several corporations in a manner oppressive or unfairly prejudicial to the plaintiff’s interests.

The court held that the alleged acts formed part of a complex factual matrix concerning the parties’ ongoing business relationship and that determining when the limitation period began to run required detailed factual findings.

Because a full appreciation of the evidence could not be achieved on the motion record, summary judgment was inappropriate.

The motion was dismissed and the issues were left for determination at trial.

The Halton Region Conservation Authority appealed the sentencing decision imposed on the respondents for contravening the Conservation Authorities Act by undertaking unauthorized development in a designated erosion hazard zone.

The respondents had applied for permission to construct a lakeside addition to their property in Burlington, which was denied.

Despite the denial and subsequent stop work orders, they proceeded with construction and completed the addition.

The trial judge imposed fines of $5,000 each and a probation order requiring seawall reconstruction, but did not order removal of the unauthorized structure.

The appellate court found the sentence demonstrably unfit and allowed the appeal, setting aside the fines and imposing an order for removal of the lakeside addition at the respondents' expense.