Employment and Labour Law - OCJ

The Ministry of Labour charged A & L Hammer Workforce Management Inc. and its sole director, Liwayway Coluna Miranda, with failing to comply with orders to pay employee wages and recruitment fees under the Employment Standards Act and Employment Protection for Foreign Nationals Act.

The defendants pleaded not guilty, with the corporation's trial proceeding ex-parte.

Ms. Miranda raised a due diligence defence, claiming her business was destroyed and accounts frozen due to a CBSA raid and subsequent criminal charges (later withdrawn).

The court found that Ms. Miranda failed to demonstrate due diligence, as she continued to recruit foreign nationals despite financial difficulties and did not make reasonable efforts to secure funds or engage with the Ministry.

Both the corporation and Ms. Miranda were found guilty on all counts.

Vinventory Canada Inc. brought an application challenging the constitutional applicability of Ontario's Occupational Health and Safety Act, arguing that it was subject to federal derivative labour jurisdiction under the Canada Labour Code.

The corporation, a sub-contractor providing rail yard management and automobile handling services at a Canadian Pacific Railway facility, contended its operations were an integral part of a federally regulated undertaking.

The court dismissed the motion, finding that Vinventory's work was not sufficiently integral or permanently dependent on the federal undertaking to displace the presumptive provincial labour jurisdiction.

The informant sought to issue process for a private prosecution, alleging her employer violated the Genetic Non-Discrimination Act by requiring her to take a COVID-19 rapid antigen test as a condition of employment.

At the pre-enquête hearing, the court considered whether a rapid antigen test qualifies as a 'genetic test' under the Act.

The court found that a rapid antigen test merely detects the presence of viral nucleoprotein antigens and does not analyze DNA or RNA.

As the informant failed to establish a prima facie case, the court declined to issue process.

The Crown charged Proformance Group Insurance Solutions Inc. with failing to comply with an Employment Standards Order to pay $4,867.72 in unpaid wages, contrary to section 132 of the Employment Standards Act, 2000.

The defendant did not appeal or seek judicial review of the Order.

The defendant's director testified that the corporation had ceased operations in May 2016, before the Order was issued in October 2016, and that the corporation lacked financial resources to comply.

The court found that the defendant failed to establish a due diligence defence, as it took no reasonable steps to attempt compliance and made no efforts to obtain financing.

The court convicted the defendant.

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.

The appellant, a constructor, appealed its convictions under the Occupational Health and Safety Act arising from a workplace fatality where a subcontractor's employee was electrocuted after a hydrovac boom contacted an energized overhead wire.

The appellant argued the trial court made palpable and overriding errors in finding the actus reus was proven and in rejecting its due diligence defence.

The appeal court dismissed the appeal, finding the trial court reasonably concluded that the boom entered the restricted envelope, no signaller was designated, the crew was not informed of the unusually low height of the wires, and the appellant's lack of active supervision and monitoring fell short of due diligence.

The defendant employer was charged under the Occupational Health and Safety Act following a fatal boat crash that killed two guests and injured an employee guide.

The Crown alleged the employer failed to maintain the boat's steering friction adjuster and failed to ensure the guide used an engine shut-off lanyard.

The court acquitted the defendant on both counts.

The court found reasonable doubt regarding whether the loose steering was caused by a lack of maintenance or operator preference.

Furthermore, the court held that the requirement to use protective devices 'as prescribed' strictly means prescribed by regulation, and no such regulation existed for lanyards in the guiding industry.

The defendant, a bank employee, pleaded guilty to three counts of fraud involving the theft of over $11,000 from the bank and its clients.

The Crown sought a six-month conditional sentence, while the defence sought a discharge.

The defendant claimed he committed the frauds to raise money to save his sister from kidnapping and rape threats by a Syrian militia group.

The court found the defendant's testimony credible and accepted that his motivation was to protect his sister from serious harm.

The court imposed a conditional discharge with two years' probation, finding that the exceptional circumstances of the case—involving duress-like conditions and a humanitarian motivation—warranted a departure from the typical sentencing range for breach of trust frauds.

The defendant pleaded guilty to two counts of fraud over $5,000, having defrauded her employer, the Toronto Dominion Bank, of $1,778,543.57 over approximately 14 years while employed as a senior manager with authority over internal accounts.

The Crown sought a three-year penitentiary sentence, while defence counsel sought a lengthy conditional sentence with probation.

The court imposed a custodial sentence of 17 months (14 months on count 1 and 3 months consecutive on count 2), rejecting a conditional sentence despite significant mitigating factors including full restitution, guilty plea, and evidence of major depressive illness.

The court also imposed a five-year employment prohibition under section 380.2.

The offender was convicted of three counts of sexual assault against a vulnerable employee with a learning disability at his workplace.

The offender, aged 60 at the time of the offences, sexually assaulted the victim on a single day in December 2011.

The victim, who functioned at the level of a 12 or 13-year-old and had been placed with the offender through a supported employment program, suffered significant trauma.

The offender demonstrated no insight into his conduct, claiming curiosity and believing the victim was consenting.

The court imposed a 90-day concurrent jail sentence (to be served intermittently if requested), 2-year probation with strict conditions including no contact and counselling requirements, a 10-year SOIRA order, a 10-year weapons prohibition, and ordered a DNA sample.

The Crown prosecuted three defendants under the Occupational Health and Safety Act following a serious workplace accident on October 15, 2008, at 45 Meadowvale Road, Toronto, where a worker fell from a roof and suffered a spinal cord injury resulting in paralysis.

The Crown charged Teisha Lootawan as a supervisor with failing to ensure protective devices and adequate fall protection, and with knowingly furnishing false information to an inspector.

J.R. Contracting Property Services Ltd. was charged as an employer with failing to ensure prescribed measures and procedures, failing to provide adequate fall protection, and failing to provide information, instruction, and supervision.

Andrew J. Haniff was charged with hindering and obstructing an inspector.

The court found that the worker was exposed to a fall of more than three metres without fall protection equipment or training.

The court determined that Lootawan acted as a supervisor with authority over workers, that J.R. Contracting was the employer despite cash-only payments and on-call arrangements, and that Haniff refused to answer lawful questions from the inspector.

All defendants were convicted on all counts.

The defendant, Steven Blondin, pleaded guilty to 112 charges of failing to comply with Orders to Pay issued by an Employment Standards Officer under the Employment Standards Act, 2000.

Blondin was the sole director of six Ontario corporations that failed to pay wages totalling approximately $142,000 to 61 employees between March 2007 and October 2009.

The court imposed a fine of $40,000 against Blondin personally and $240,000 against his six corporations collectively, along with a custodial sentence of three months to be served concurrently.

Restitution orders were issued separately.

The defendant's request for house arrest as an alternative to imprisonment was denied as the Provincial Offences Act does not provide for conditional sentences.

The accused brought a pre-trial application seeking to allow collateral attack on Employment Standards Act orders, alternatively seeking a stay of proceedings for abuse of process, and alternatively seeking a declaration that certain sections of the Employment Standards Act were unconstitutional.

The accused had been charged with failing to comply with orders to pay outstanding wages to employees.

The accused argued he was impecunious and unable to meet the statutory requirement to pay or post a letter of credit to appeal the orders.

The court rejected all three applications, finding that the rule against collateral attack applied, that no abuse of process had occurred, and that the relevant statutory provisions did not violate the Charter.