Norm Keith

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.

This is a sentencing decision following convictions under the Occupational Health and Safety Act (OHSA) for a workplace fatality.

The corporate defendant and two individual supervisors were found guilty of failing to ensure proper rigging of concrete blocks and adequate training/supervision, leading to a worker's death.

The court applied established sentencing principles, emphasizing deterrence and considering the increased maximum penalties for OHSA offences.

Fines were imposed on the corporate defendant and the two individual supervisors, reflecting the seriousness of the breach and the need for general deterrence.

During a trial for offences under the Occupational Health and Safety Act, the Crown sought to admit expert evidence from an engineer, Mr. Khorsand, regarding structural engineering and hoisting practices.

The defence challenged his qualifications, alleging bias and negligence.

The court applied the two-component test for expert evidence admissibility, finding Mr. Khorsand met the threshold requirements as a properly qualified and unbiased expert.

The court determined that the benefits of admitting his evidence outweighed any potential harm, such as undue consumption of time, and allowed him to testify.

The corporate defendant, Limen Group Const. (2019) Ltd., and two individual supervisors, Octavio Tome and Emanuel Tavares, faced charges under the Occupational Health and Safety Act following a fatal incident where a concrete block, improperly hoisted by a crane, fell and killed a worker.

The charges alleged failure to ensure suitable attachment points for hoisting and failure to sufficiently train and supervise workers regarding the hazard of using embedded rebar as hoisting points.

The court found that the Crown proved the hazardous act and the defendants' roles as employer and supervisors.

The defendants' due diligence defence, which argued the worker acted alone, was rejected.

The court found that the unsafe practice was not an isolated incident and was known or should have been known to supervisors, and that the defendants failed to take all reasonable steps to prevent such hazardous rigging.

All defendants were found guilty of the charges.

The defendants, Limen Group Const. (2019) Ltd., Octavio Tome, and Emanuel Tavares, brought three Charter motions (No. 5, 7, and 8) for a stay of proceedings, alleging violations of their section 7, 11(b), and 11(d) Charter rights, prosecutorial misconduct, and unreasonable delay.

Motion No. 5 alleged failure to call a witness, late disclosure of an immunity agreement, and failure to vet witnesses.

Motions No. 7 and 8 alleged unreasonable delay under section 11(b) of the Charter, applying the Jordan framework.

The court dismissed all motions, finding no irreparable prejudice from disclosure issues, no prosecutorial misconduct, and that the overall delay, after accounting for defence delay and discrete events, fell below the presumptive Jordan ceiling.

The court noted the defence's conduct contributed significantly to the trial's length.

The defendants brought a second set of pre-trial motions seeking a stay of proceedings for abuse of process, recusal of prosecutors, declarations of Charter violations, and various disclosure orders.

The motions alleged prosecutorial and investigative misconduct, including failure to disclose relevant case law, prejudicial filing of witness statements, and late disclosure of a police statement.

The court dismissed the motions for a stay, recusal, and prevention of new witnesses.

It also largely denied the disclosure requests, finding no merit in the misconduct allegations and that most requested items were matters for cross-examination.

The defendants, charged under the Occupational Health and Safety Act following a workplace fatality, brought motions for disclosure of Ministry inspectors' disciplinary files and a "Director's Memo," and for a stay of proceedings based on alleged abuse of process and unreasonable pre- and post-charge delay.

The court dismissed all motions, finding that the requested disciplinary files were not relevant first-party disclosure and that the Director's Memo was protected by solicitor-client privilege, with no "innocence at stake" exception met.

The court also determined that the pre- and post-charge delays were not unreasonable under the Charter's fair trial and delay provisions, and that the alleged investigative and prosecutorial misconduct did not meet the high threshold for an abuse of process stay.

The Crown appealed the dismissal of charges under the Occupational Health and Safety Act against an employer and supervisor following a workplace accident.

The lower courts had excluded evidence from the Ministry of Labour's inspection of a roller, finding a breach of the respondents' Charter rights (s. 11(d)) due to the inspectors' failure to halt inspection after a lawyer's letter, poor note-taking, and not following internal policies.

The Court of Appeal found that there is no constitutional right for an accused to direct an investigation or be present during evidence inspection.

It held that inconsistencies in inspector testimony or failure to follow internal guidelines do not amount to a Charter violation.

Crucially, the respondents failed to demonstrate any prejudice to their right to make full answer and defence, especially after disposing of the evidence themselves.

The appeal was allowed, and a new trial ordered.

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.

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.

A corporation charged under the Occupational Health and Safety Act for failing to secure a ladder, resulting in a worker's fall, brought Charter motions seeking a stay of proceedings pursuant to sections 11(b) and 11(d) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay, abuse of process, and denial of the right to a fair trial.

The court dismissed the motions, finding that while delay occurred, it did not breach the corporation's fair trial rights.

The court held that pre-charge delay is generally not protected by section 11(b) unless there is bad faith, and that a corporate accused must establish irremediable prejudice to succeed on such applications.

The court found no irremediable prejudice and that institutional delay was within acceptable guidelines.

The Ministry of Labour appealed the acquittal of Dufferin Construction Company and supervisor David Pimpinella on charges arising from a workplace accident where a large slab of ice fell from a tunnel face wall, injuring an employee.

The trial judge dismissed all three counts, finding the Crown had failed to prove the actus reus beyond a reasonable doubt.

The appellate court upheld the acquittals on Counts 1 and 3 (employer and supervisor duties under the Occupational Health and Safety Act), finding the trial judge's reasons were adequate and the verdicts were supported by the evidence.

However, the court allowed the appeal on Count 2, a technical charge regarding missing safety markings on crane and basket equipment, and entered a conviction on that count.

The Corporation of the City of Guelph was charged with failing to ensure that a wall in a workplace was capable of supporting all loads to which it may be subjected, contrary to section 25(1)(e) of the Occupational Health and Safety Act.

The charge arose from the collapse of a privacy wall in a women's washroom at a municipal park in 2009, which resulted in the death of a fourteen-year-old student.

The court found that the Crown failed to prove the actus reus beyond a reasonable doubt because the charging section incorporated the outdated concept of "allowable unit stresses," which had been superseded by limits states design methodology in 1997.

The court also found that even if the actus reus had been established, the City had exercised due diligence in issuing the building permit by reasonably relying on the professional stamps of the architect and engineer, and that the City was not required to conduct further investigation based on the engineer's involvement in a prior unrelated project.

The defendants, Strabag Limited (constructor) and Ryszard Pietka (supervisor), were charged with four counts under section 23 of the Occupational Health and Safety Act for failing to prevent a worker from falling into operating machinery by ensuring appropriate guardrail systems or fall protection methods were in place, and for failing to ensure machinery was locked out while a worker was exposed to it.

The incident occurred on January 14, 2010, at the Niagara Tunnel Project when an apprentice electrician fell onto a conveyor belt system while repairing a camera.

The court found the defendants guilty on counts one and four (guardrail charges) but acquitted them on counts two and five (lockout charges).

The court imposed a fine of $30,000 on Strabag and $1,000 on Pietka.