Ontario Court of Justice
Date: 2024 04 30 Court File No.: Fort Frances 3660 999 22 220156 00
B E T W E E N :
Ministry of Labour, Immigration, Training and Skills Development for Ontario
— AND —
Cementation Canada Inc.
Before: Justice of the Peace P. Clysdale-Cornell Heard on: March 19, 2024 Reasons for Judgment released on: April 30, 2024
Counsel: David McCaskill ......................................................................... counsel for the prosecution KPMG Law LLP – Norm Keith… counsel for the defendant Cementation Canada Inc.
JUSTICE OF THE PEACE CLYSDALE- CORNELL:
Introduction
[1] Cementation Canada Inc., 66 Wellington Street West, Suite 3600, Toronto, Ontario M5K 1N6 has been charged on or about the 12 day of January 2022, at the New Gold Minesite, 5967 Hwy. 11, in the Township of Emo, in the Northwest Region, of the Province of Ontario with the following three offences:
Count 1 – Did commit the offence of failing, as an employer, to ensure that the provisions of s. 14(1) of the Ontario Regulation 854/90 were complied with at a workplace located at the New Gold Minesite, Emo, Ontario, contrary to s. 25 (1) of the Occupational Health and Safety Act R.S.O. 1990, c.O.1, as amended.
Count 2 – Did commit the offence of failing, as an employer, to ensure that the load on a vehicle was adequately secured contrary to s. 110(4) of the Ontario Regulation 854/90 were complied with at a workplace located at the New Gold Minesite, Emo, Ontario, contrary to s. 25 (1) (c) of the Occupational Health and Safety Act R.S.O. 1990, c.O.1, as amended.
Count 3 – Did commit the offence of failing to take every precaution reasonable in the circumstances for the protection of a worker at a workplace located at the New Gold Minesite, Emo, Ontario, contrary to s. 25 (2) (h) of the Occupational Health and Safety Act R.S.O. 1990, c.O.1, as amended. Particulars: the employer failed to ensure that the bucket of an LHD was not used as a work platform.
Application and Issues Identified
[2] A Notice of Motion and Constitutional question has been brought before this court alleging a breach of the defendant’s constitutional rights under section 11 (a) of the Charter by not informing the defendant of the specific offence under counts 1 and 2 in the Information, specifically:
- Issue 1: Not providing particulars for counts 1 and 2.
[3] The Notice of Motion and Constitutional question also alleges a breach of the defendant’s constitutional rights under section 11 (d) of the Charter by not providing the defendant with full, complete, and timely disclosure, specifically:
Issue 2: The document “Cementation Risk Assessment Matrix – Mine Development”.
Issue 3: All drafts and the final version of the document(s) known as the MLITSD’s Guideline titled “Use of Vehicle Buckets as a Working Platform”, dated February 2, 1981, and revised in August 2004, as well as any related documentation.
Issue 4: A legible copy of Inspector Landry’s notes that were taken after the incident that led to the charges in this case.
Issue 5: The “Director’s Memo” in this case, prepared by the lead MLITSD inspector, Roland Landry for his Director, Margaret Cernogoj, that was reviewed and approved by his Regional Program Coordinator, Alain Perreault.
Review of Issues and Rulings
[4] Issue 1: Most Informations with charges laid under the Occupational Health and Safety Act (OHSA) often have a clear explanation of the offence included in a “to wit’ paragraph. Defence has argued that since this was not done for Counts 1 and 2, the defendant did not have a clear understanding of the charges. Defence counsel suggests that the cases “R v Lucas (1983), 6 C.C.C. (3d) 147” and “R. v. Côté, [1978] 1 SCR 8 (S.C.C.)” support this analysis.
[5] The prosecution asserts that the section identified in OHSA Regulation 854/90 delineates a clear explanation of the charge. I agree. Count 1 specifically refers to an offence specific to s. 14 (1) of Ontario Regulation 854/90 made in relation to the Occupational Health and Safety Act. It reads:
- (1) Subject to subsection (5), where a worker is exposed to the hazard of falling more than three metres, a fall arrest system shall be used to protect the worker. R.R.O. 1990, Reg. 854, s. 14 (1) ……
(5) Subsection (1) does not apply to a worker employed in shaft sinking where measures and procedures are adopted and put into effect that will provide equal or greater protection to the worker. R.R.O. 1990, Reg. 854, s. 14 (5).
Count 2 specifically refers to an offence specific to s. 110(4) of the Ontario Regulation 854/90 made in relation to the Occupational Health and Safety Act. It reads:
- (1) Vehicles being used for transporting workers shall, (a) be provided with suitable seats or other facilities; (b) be limited to a maximum number of passengers, which number shall be posted in or on the vehicle; and (c) when enclosed, be equipped with an emergency exit. R.R.O. 1990, Reg. 854, s. 110 (1)……
(4) The load on a vehicle shall be adequately secured. R.R.O. 1990, Reg. 854, s. 110 (4).
Both sections clearly spell out the particulars of the offences that Cementation Canada Inc. have been charged with in Count 1 and 2 on the Information.
[6] Issue 2: The Cementation Risk Assessment Matrix – Mine Development report was requested on March 29, 2023 and included in the Crown’s Factum in Response to the Charter Motion. Although filed a bit late, it has now been provided to Defence and is no longer an issue.
[7] Issue 3: The document known as the MLITSD’s Guideline titled “Use of Vehicle Buckets as a Working Platform”, dated February 2, 1981 and revised in August 2004 was requested by defence in the October 13, 2023. The prosecutor indicated in his letter dated October 23, 2023 that this document was not available. This was also supported in the testimony of Alain Perrault when he indicated that there were no rules regarding using scoop tram bucket as lifts. Considering that the requested document would be 20 years old, the court accepts that this document is no longer available and could not be considered a piece of required disclosure.
[8] Issue 4: I would agree with defence that the copy of Inspector Landry’s notes that were included in disclosure are somewhat difficult to read. The shadowed area and shortforms make them difficult to understand but I’m not sure a transcript would be any more helpful. The issues raised by the copy of the notes, namely the question regarding the time notations and the strategic placing of the business cards are best dealt with at trial. A transcript of the document would not clarify these specific concerns raised by defence.
[9] Issue 5: The disclosure of the “Director’s Memo”, a document identifying whether charges should be laid and who should be charged is a key bone of contention for the defendant. The prosecution asserts that this document is protected by way of solicitor- client privilege and that its contents are irrelevant to this case. Defence argues that there is no solicitor-client privilege associated with this document and articulated a belief that it is very relevant to this case and the defendant’s ability to offer a defence to the charges. There is a belief by defence that the “Director’s Memo” includes information on other potential charges on other defendants that could have an impact on the defence arguments by Cementation Canada Inc. There was an attempt during the testimony of four key witnesses who were employed by the Ministry of Labour, Immigration, Training and Skills Development for Ontario (MLITSD) at the time of the incident, to elicit more details about this specific Director’s Memo. Unfortunately, their testimony was not helpful in this regard and sometimes seemed to be a bit evasive.
[10] The affidavit of Matthew Cook contained at Tab E in the Motion Record of the defendant summarizes the type of information that may be contained in a “Director’s Memo”. This is confirmed by Exhibit A in the Crown’s Factum in Response to Motion of the Moving Party. “R. v. Limen Group Const. (2019) Ltd. Et al, [2023] O.J. No. 1106 OCJ,” beginning at paragraph 40, provides an excellent analysis of the issues surrounding the disclosure of this document. I agree with this analysis. I have heard no evidence that indicates that the information within this document will raise a reasonable doubt with regard to these charges. Any evidence in this regard may be obtained directly from the testimony of Inspector Roland Landry at trial. The request to disclose a copy of the “Director’s Memo” in relation to these charges is denied.
[11] Having reviewed all the evidence presented, the court finds no evidence to support a breach under section 11 (a) and section 11 (d) of the Canadian Charter of Rights and Freedoms. As such, the court dismisses the Motion for a judicial stay of all charges pursuant to section 24 of the Charter. Further, the application for costs is denied.
Released: April 30, 2024 Signed: Justice of the Peace P. Clysdale- Cornell