DATE: 20040514

DOCKET: C41292

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (ONTARIO MINISTRY OF LABOUR) (Appellant) –and– DYNATEC CORPORATION, BRIAN HAGAN, WILLIAM SHAVER, EDWARD OKELL and DAVID CHAPMAN (Respondents)

BEFORE: ABELLA, MOLDAVER and SIMMONS JJ.A.

COUNSEL: Victoria A. Kondo for the appellant

Norman A. Keith for the respondent

HEARD: May 7, 2004

RELEASED ORALLY: May 7, 2004

On appeal from the order of Justice Eugene G. Ewaschuk of the Superior Court of Justice dated January 26, 2004 dismissing an application for judicial review of orders issued by Justice P. Bishop of the Ontario Court of Justice on July 21 and 29, 2003.

E N D O R S E M E N T

[1] In our view, the motions judge erred in finding that Bishop J. made no jurisdictional errors. In particular, Bishop J. made no finding of a Charter breach, yet purported to grant Charter remedies in ordering discovery, cross-examination and costs. On this record, there was no basis for finding a Charter breach. Delayed disclosure does not necessarily constitute a Charter breach; nor does the failure to disclose material which the Crown, in good faith, believes is irrelevant. See R. v. Elliott, 2003 24447 (ON CA), [2003] O.J. No. 4694 at paras. 155-163 and 166. For that reason alone, we would find that there was jurisdictional error.

[2] In addition, we are of the view that some of the remedies ordered by Bishop J. denied the appellant its right to natural justice and therefore also constituted jurisdictional error. Specifically, we are referring to the order for disclosure of evidence which, on its face, was subject to solicitor-client privilege, without providing an opportunity for submissions on the subject of the privilege. Similarly, the award of $82,000 in costs was made without giving the Crown the opportunity to make submissions on the quantum.

[3] As for the order requiring that an affidavit be produced, to the extent that it was not a Charter remedy, the trial judge exceeded his jurisdiction by requiring the Crown to create evidence for the defence’s benefit.

[4] In these unusual circumstances, the tests in R. v. Duvivier (1991), 1991 7174 (ON CA), 64 C.C.C. (3d) 20 (Ont. C.A.) and in s. 141(4) of the Provincial Offences Act, R.S.O. 1990, c. P.33 have been met. Accordingly, the appeal is allowed, the order of Ewaschuk J. is set aside, and the order of Bishop J. is quashed. If the trial judge is of the view that further disclosure is required of matters which the Crown, in good faith, believed to be irrelevant, the appropriate order may be made.

[5] There will be no order as to costs.

Signed: “R.S. Abella J.A.”

“M.J. Moldaver J.A.”

“Janet M. Simmons J.A.”