COURT OF APPEAL FOR ONTARIO

DATE: 20030917

DOCKET: M30081

RE: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF LABOUR) (Respondent) v. TIMMINCO LIMITED (Applicant)

BEFORE: O’CONNOR A.C.J.O.

COUNSEL: Norm Keith for the appellant/moving party Wes Wilson for the respondent

HEARD: September 11, 2003

ENDORSEMENT

[1] The applicant has not met the test in s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P. 33 for granting leave to appeal to this court. I am not persuaded that it is essential to the public interest or for the due administration of justice that leave be granted.

[2] The summary conviction appeal court judge (the appeal judge) found that the trial judge erred in concluding that the applicant had established that the delay relied upon had caused irremediable prejudice to the applicant’s fair trial rights.

[3] In his reasons, the appeal judge pointed out that the trial judge’s reasons did not explain how the missing notes could assist the applicant in asserting the defences of due diligence or officially induced error or how the absence of the notes would otherwise prejudice the applicant. The missing notes predated the fatality by some years and there was evidence that the important information from the notes had been transcribed into field reports which are available to the applicant.

[4] I agree with the appeal judge’s conclusion that the finding of prejudice by the trial judge was “purely speculative and hypothetical” and that the trial judge erred in finding that prejudice had been established.

[5] Moreover, there was little, if any, evidence linking the alleged prejudice – the fact that the notes of three Ministry of Labour inspectors were no longer available – to the undue delay relied upon by the applicant.

[6] The applicant raised a number of complaints about the reasons of the appeal judge. Those complaints, even if valid, do not affect the appeal judge’s finding that the applicant had not established irreparable prejudice. That finding is fatal to the applicant’s s. 11(b) motion.

[7] Accordingly, the motion for leave to appeal is dismissed. There will be no order as to costs.

“Dennis O’Connor A.C.J.O.”