Ontario Court of Justice

Date: 2020-03-30 Location: Newmarket

Between:

Her Majesty the Queen in Right of Ontario (Ministry of Labour)

— AND —

Ash-Mar Construction Limited

Reasons on Appeal

Submissions Heard: March 6, 2020.

Released: March 30, 2020.

Counsel:

• Mr. Giuseppe Ferraro, for the Crown/Appellant
• Mr. Adrian Miedema, for the Respondent

KENKEL J.:

Introduction

[1] On April 26, 2017 a framing wall collapsed on a construction site. The wall fell onto a worker causing critical injury to his leg. Ash-Mar Construction (Ash-Mar) was one of two companies charged as an "employer" under the Occupational Health and Safety Act RSO 1990, c O.1 (OHSA). It turns out that the Ministry charged the wrong Ash-Mar. The company alleged to be involved in the incident was 1819315 Ontario Inc. operating as Ash-Mar Construction run by Mr. Mark Odorico (The numbered company). The Ministry charged a company with a similar name, Ash-Mar Construction Limited, that belonged to Mr. Odorico's father.

[2] On December 7, 2018 the Ministry of Labour brought a motion to amend the Information to substitute the proper name of the company involved – 1819315 Ontario Inc. o/a Ash-Mar Construction. The court denied the application because of errors made by the Ministry and the fact that the OHSA limitation period had expired. The court found, "There is clearly prejudice and injustice to the defendant who fully cooperated if this motion to amend were to be granted." The court did not explain what prejudice or injustice would flow from the proposed amendment beyond noting the errors by the Ministry and the fact of the expired limitation period. The expiration of the limitation was plainly the central factor in the decision. "The Ministry in this case clearly dropped the ball and the court finds that there was no due diligence that could have easily rectified the mistake within the limitation period. Request to amend the information denied."

[3] The Ministry asked the court to dismiss the charges against the father's Ash-Mar company as it was not involved in the incident. The parties agree that despite the dismissal, the Crown's right to appeal under s 116 of the Provincial Offences Act RSO 1990, c P.33 (POA) was preserved. The issue on this appeal is whether the Justice of the Peace erred in refusing the amendment request.

[4] I agree with the Justice of the Peace that given the errors and the delay in proceeding, this was not a sympathetic case for the Ministry of Labour. However, for the reasons that follow I've found that the court erred in refusing to grant the amendment. While the court properly identified prejudice and fairness as the essential components of the s 34 POA amendment test, the court's assessment of prejudice was too narrow and did not comply with the requirements of that section.

The Appellant's Position

[5] The appellant submits that the Justice of the Peace erred in the application of the amendment test for the following reasons:

• The investigation of the incident identified Ash-Mar Construction operated by Mr. Odorico as having responsibilities under the OHSA. Orders under the OHSA were issued to the entities involved including Mr. Odorico's Ash-Mar.

• Following standard procedure, a corporate search was done that identified a company with the same name as used by Mr. Odorico's numbered company – Ash-Mar Construction. Charges were drafted against Ash-Mar Construction Limited and not the numbered company operating under the same name in error.

• The summons for Ash-Mar Construction was served on Mr. Odorico. Disclosure was provided to Mr. Odorico. The Ministry did not realize the error until counsel for Mr. Odorico notified them that the entity identified as an involved employer in the incident was the numbered company operating under the same name.

• Mr. Odorico and his Ash-Mar company had notice of the Ministry investigation from the outset and were notified of charges in relation to that investigation before the expiry of the limitation period. The application to correct the corporate name via amendment met the criteria under s 34(4) of the POA. The Justice of the Peace erred in focusing on the expiry of the limitation period as sufficient reason to deny the amendment.

[6] The Crown concedes that they erred when they attempted to confirm the corporate name. By the time the mistake was brought to their attention, the limitation period had passed. However, it was plain from the outset that the company subject to the investigation was the Ash-Mar company at the Pine Grove construction project, operated by Mr. Mark Odorico. The expired limitation period does not preclude amendment nor would it be prejudicial or unfair if the amendment were granted. There was no evidence of actual prejudice or unfairness that would result if the matter were to proceed against the numbered company. The Crown submits that this court should order that a new trial be held on an amended information.

The Respondent's Position

[7] The respondent submits that the Justice of the Peace considered the statutory criteria under s 34(4) and properly applied that test. The court's conclusion that the proposed amendment would be prejudicial and unfair is supported by the following circumstances:

• The Ministry was provided with the correct information from the outset on the Employer Registration Form, including the name and address of the numbered company and the name of its principal director Mr. Odorico.

• The corporate search which revealed a company of a similar name should not have misled the investigator or the Ministry as they had the correct information from the outset. There was simply no reason to charge the wrong corporation.

• The Ministry did not serve the director of the numbered company with the summons until two days before the expiry of the limitation date. They left themselves no time to correct any errors.

• The cases relied upon by the Crown – Ontario (Ministry of Labour) v Ivaco Inc., [2001] OJ No 1329 (SCJ), and Ontario (Ministry of Labour) v NMC Canada Inc., [1995] OJ No 2545 (CA), were both cases in which a legal non-entity was named and the amendment was to name the actual entity. In this case, Ash-Mar Construction Limited is a legal entity, and the amendment sought is to name a separate entity, the numbered company operating as Ash-Mar Construction.

• Another company, Dominus Construction, has already pleaded guilty and been fined in relation to the incident so the public interest in prosecuting the remaining defendant is diminished.

[8] The respondent submits that the appeal should be dismissed.

Standard of Review

[9] The question of whether an information should be amended is a question of law – Provincial Offences Act RSO 1990, c P.33 s 34(5) (POA). Both parties agree that the standard on review is correctness. Findings of fact based on evidence heard on the application are entitled to deference, but the application of a legal standard to those facts is a question of law – R v Shepherd, 2009 SCC 35, at para 20.

POA s 34 – The Test for Amendment

[10] Section 34(1) of the POA sets out broad powers of amendment which include amendment of the name of the defendant. The section reflects a legislative intent that POA charges be decided on their merits and not on technical grounds or procedural irregularities – York (Regional Municipality) v Winlow 2009 ONCA 643 at para 9.

[11] Section 34(4) sets out four criteria a court must consider when deciding whether to grant an amendment:

a) the evidence taken on the trial; if any;

b) the circumstances of the case;

c) whether the defendant has been misled or prejudiced in the defendant's defence by a variance, error or omission; and

d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

[12] Section 34(4) directs the court to consider whether the defence would be prejudiced by the amendment and whether it would be otherwise unjust to make the amendment. Note that prejudice has a particular meaning in this context. Injustice in s 34(4)(d) captures the general notion of unfairness – Winlow at para 80. The court should not grant an amendment that would be unfair having regard to all of the circumstances of the case.

Prejudice and s 34(4)(c)

[13] The meaning of "prejudice" in this context is important. From the brief reasons it appears that the court applied a narrow interpretation of prejudice equivalent to: a consequence to a party that is adverse to its interests. That's the common meaning of the term and in that sense adding the numbered company after the limitation expired would indeed be adverse to the company's interests. Approaching prejudice in this narrow way would almost always result in amendments being refused after a limitation period expired.

[14] Under section 34(4)(c), "prejudice" has a particular meaning. That section requires the court to determine whether the defendant would be misled in any way or prejudiced in their ability to present a defence. Simply identifying an adverse consequence is not sufficient. The court must ask "whether the defendant's opportunity and ability to meet the charge would be adversely affected by the amendment" – Winlow at para 31 as cited in AB Gill at para 32. This approach is consistent with the legislative intent identified by the Court of Appeal in Winlow as discussed above.

[15] While the Justice of the Peace was right to cite prejudice and unfairness as the central questions under s 34(4), I find his approach to the prejudice analysis was too narrow. The court did not consider all of the circumstances and did not determine whether the numbered company's ability to present a defence would be prejudiced. The narrow approach did not meet the requirements of s 34(4)(c) and led to a further error when the court considered the fairness test in s 34(4)(d).

Lack of Diligence by the Ministry

[16] One of the two reasons given for the refusal to amend was a lack of diligence on the part of the applicant Ministry. If this were a civil matter between two private parties, it may well be that the lack of diligence would be an important factor that would justify a refusal of an amendment. However, such a focus in a provincial offence case ignores the regulatory context and the public interest in these prosecutions. The s 34 test does not specifically require or refer to diligence on the part of the applicant. The court must consider all of the "circumstances of the case" which would include any diligence or lack thereof on the part of the applicant, but those circumstances only inform the analysis under subsections (c) and (d) to determine prejudice and whether an amendment would otherwise be unfair.

[17] In Ontario (Ministry of Labour) v NMC Canada Inc., [1995] OJ No 2545 (CA), the Ministry of Labour charged a partnership which is not a legal entity that could be prosecuted. The Ministry never conducted a partnership registration search. By the time they discovered their errors and brought an application to amend, the limitation period for charges under the OHSA had expired. The Court of Appeal held that an amendment should have been granted. Even the complete failure by the Ministry to take an essential investigative step and the charging of a legal non-entity did not result in prejudice to the respondents who were otherwise on notice that the Ministry intended to prosecute them for their conduct in relation to the incident.

[18] In this case the court cited the central elements of the test under s 34(4), but there was no analysis as to how the lack of diligence on the part of the Ministry prejudiced the ability of the numbered company to present a defence. As counsel for the respondent points out, the numbered company had provided the correct information when the incident was reported. The numbered company cooperated with the investigation. The charges against Ash-Mar were served on the Director of the numbered company. It was counsel for the numbered company who properly alerted the Ministry to the error in the name. On the application, counsel for Ash-Mar Construction Limited opposed the amendment request, even though such an amendment would benefit the named defendant company and remove them from the case. As he stated on the record, counsel was acting not only for the actual defendant, the father's company Ash-Mar, but in opposing the amendment was also acting for the interests of the numbered company as he had throughout. There was no evidence on the application of any prejudice to the ability of the numbered company to present their defence that would flow from correcting the corporate name.

The Expiry of the Limitation Period

[19] The second reason cited by the court for refusing the amendment request was the expiration of the OHSA limitation period. The notion of prejudice or unfairness seemed to flow primarily from that fact. Section 69 of the OHSA provides that no prosecution shall be instituted more than one year after the occurrence of the incident or the day when an inspector became aware of the alleged offence. The incident was reported the day it occurred, and the limitation had expired by the time the Ministry applied to amend the information.

[20] Both parties agree that the expiry of a limitation period does not preclude an amendment of the information. See: Ontario (Ministry of Labour) v NMC Canada Inc., [1995] OJ No 2545 (CA) at para 38.

[21] The respondent submitted that while the expiry of a limitation doesn't automatically preclude amendment, it's close. There's a "presumption of prejudice" flowing to the new defendant, citing Ontario (Ministry of Labour) v Rahnmet Inc., [2009] OJ No 5418 (CJ). The Justice of the Peace in Rahnmet denied an application to amend in similar circumstances where the correct name of the employer was a numbered company operating as Rahnmet Inc. In denying the application, the court held that the Ministry/applicant had failed to show "special circumstances" required to overcome the "presumption of prejudice."

[22] In Ontario (Ministry of Government and Consumer Services) v Ivan's Electric Ltd., 2017 ONCJ 227 at para 117, the trial court rejected the addition of a "presumption of prejudice" to the test in s 34 of the POA. The presumption appears to have been adopted from the civil cases cited in Rahnmet. The Alberta Court of Queen's Bench on appeal also rejected the presumption proposed in Rahnmet as inconsistent with the provisions of their provincial offence procedure which, like Ontario's s 34 POA test, is based on s 601 of the Criminal Code – R v AB Gill Trucking Ltd., 2018 ABQB 160 at paras 20-26. I agree with the reasoning in both cases. The expiry of a limitation is a relevant circumstance under s 34(4)(b), but to infer a "presumption of prejudice" from that one circumstance requiring "special circumstances" to overcome would be inconsistent with the s 34(4) test and the overall intent of the Act. Such an approach would also be inconsistent with that taken by the Court of Appeal in NMC Canada Inc. I disagree with the respondent that naming a legal non-entity is a distinguishing error, less prejudicial than naming the wrong Ash-Mar Construction in this case. The result to the company added after the expiry of the limitation would be the same – the loss of a technical defence.

[23] There's nothing in the evidence to suggest that the expiry of the limitation in this case would prevent the numbered company from making full answer and defence at trial. I find the trial court erred in concluding prejudice without conducting an analysis of all the circumstances and without applying the specific test in s 34(4)(c).

s 34(4)(d) – Without Injustice Being Done

[24] The court's conclusion of injustice or unfairness appears to flow from the two circumstances discussed above. There is no further circumstance that would render the amendment unjust. The numbered company was the entity alleged to be involved in the incident and the correct entity to be charged. The confusion between similar corporate names and the misnaming of the defendant late in the proceedings created a possible technical defence for the numbered company, but correction of the error to permit a trial on the merits is consistent with the intention of the legislation and the public interest.

[25] I find that the court's error in applying too narrow an assessment of prejudice led to a further error in relation to the fairness assessment pursuant to s 34(4)(d).

Conclusion

[26] I agree with the Justice of the Peace who presided on the application that limitation periods are important, but that one circumstance is not conclusive. I find the court erred in applying too narrow an approach to the assessment of prejudice and fairness under the s 34(4) test for amendment. Applying that test, and considering all of the evidence heard on the application and the circumstances cited by both parties, I find that the appellant has shown that the numbered company operating as Ash-Mar Construction would not be prejudiced in its defence by the proposed amendment nor would the amendment be otherwise unfair.

[27] The appeal is allowed. Pursuant to sections 121 (b)(i) and 125 of the POA this court directs that a new trial be held on an amended information naming 1819315 Ontario Inc. o/a Ash-Mar Construction as the defendant in counts 1 and 2.

[28] I wish to thank Mr. Ferraro appearing for the appellant Ministry and Mr. Miedema appearing for the respondent for the quality of their written materials and the excellence of their submissions on the application. Their help was very much appreciated.

Delivered: March 30, 2020.

Justice Joseph F. Kenkel