Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 08 22 Toronto

BETWEEN:

HIS MAJESTY THE KING IN RIGHT OF ONTARIO (MINISTRY OF LABOUR, IMMIGRATION, TRAINING AND SKILLS DEVELOPMENT)

- AND -

A & L HAMMER WORKFORCE MANAGEMENT INC.

- AND –

LIWAYWAY COLUNA MIRANDA

Before: Justice of the Peace Scarfe

Motion to Quash heard on: July 4, 2024 Reasons for Judgment on Motion to Quash released on: August 22, 2024

Counsel: M. Chin-Yee, Counsel for the Ministry R. Sewani, Counsel for the defendant, Miranda LIWAYWAY

Reasons for Judgment on Motion to Quash

JUSTICE OF THE PEACE SCARFE:

[1] Liwayway Miranda brings a motion to quash certain counts on the Information on the basis that the charges were laid following the expiration of the limitation period. She brings her motion at the end of the trial following this Court’s determination that she is guilty of the offences charged, but before entering the sentencing phase of this proceeding.

[2] Ms. Miranda and her corporation A & L Hammer Inc. were found guilty of 18 counts of Failing to Comply with Orders to pay wages made pursuant to s 103 of the Employment Standards Act, and sections 7 and 24(2) of the Employment Protection for Foreign Nationals Act. My reasons were released on April 18, 2024, and are reported at Ontario (Labour) v. A.L. Hammer Workforce Management (April 18), 2024 ONCJ 192.

[3] The motion was brought very late in the process due to human error. Defence counsel candidly admitted that he did not realize the issue with the limitation periods in this matter until he was preparing for sentencing. He apologized to the Court for this, and I accept his explanation.

[4] S. 36 of the Provincial Offences Act provides the Court with statutory authority to quash an information. If the Application is brought after the initial plea is taken, the Applicant requires leave of the Court. That is the case here.

[5] The Prosecution submits leave ought to be denied on the basis that the defendant should have raised the issue much earlier in the proceedings. She makes a legitimate point when she characterizes the application as “untimely”. Nevertheless, limitation periods are enacted by the legislature for good reason. Informations laid outside the limitation period represent a fundamental defect in the process in that the court lacks jurisdiction to hear the matter. Limitation periods represent an important procedural safeguard for all defendants. In my view, this issue should be decided on its merits, despite the unfortunate timing.

[6] Should I determine that the offences are continuous, the prosecution has not missed the limitation period. If I determine that the offences are not continuous, then many of the counts would be quashed as they fall outside the limitation period.

[7] The Defendant, through her counsel, argues that the offences charged commence and terminate on the first day following the thirty-day grace period provided for in the legislation. Defence Counsel says that once the grace period expires, the defendant is guilty and the offence is complete.

[8] Defence Counsel also points out that one of the two pieces of legislation in issue, the Employment Protection for Foreign Nationals Act, contains provisions elsewhere in the Act that provide for incremental liability by imposing a specified monetary penalty for each day of violation. Counsel argues that the absence of such provisions should lead me to conclude that the legislature intended to make the offences in question non-continuous through its silence. Counsel cites Justice Grange in the decision of R v Rutherford, 1990 75 C.R. 230, as authority for this proposition. In that case, the court stated at page 236:

It is considerably easier to find a continuing offence where the statute provides for a penalty for every day that the corrective work is not done or the offending activity continues to be done. Such a provision is found in s. 93(11)(c) of the Act, which relates to continued disobedience of an order made under s. 93(5). The juxtaposition of this provision in s. 93(11)(c) to the absence of such a provision in s. 93(11)(b) is significant. Under s. 93(11)(b), there is no mention of a continuing contravention, and on the facts of this case the appellant was engaged to perform specific electrical work. The performance was far from perfect — indeed, in the course of it he has committed two offences — but after the completion of the contracted work his offences are complete.

[9] Counsel for the defendant also argues that I should follow the Ontario Court of Appeal decision in Her Majesty the Queen in Right of Ontario v. Newton Thompson et al 2009 ONCA 449, 2009 97 O.R. (3d) 112, where the Court found the offence in question to be a non-continuous offence. He suggests that the decision in Newton-Thompson has modified the test set out in the seminal case on this issue, Her Majesty the Queen (Workplace Safety and Insurance Board) v. Hamilton Health Sciences Corporation, 2000 O.J. No. 3929, effectively overruling what was previously and widely recognized as the leading case on the issue of whether offences are continuous or non-continuous.

[10] The Crown argues that the offences are continuous and provides a plethora of caselaw, reported and unreported, involving similar offences which follow the Hamilton Health Sciences case, and in which the offences in question were determined to be continuous offences. Those cases include:

• Ontario (Ministry of Labour) v. Urus Industrial Corp. 2006 ONCJ 477
• R v. Koolatron Corp. (unreported, October 22, 2009, Ont. C. J., Edward J., leave to appeal to the Ont. C.A. refused April 7, 2010
• R v. Corporation (City of Guelph) 2012 ONCJ 251
• R v. Dainolite Limited, (unreported, December 5, 2006, Ont. C.J., Brampton, Allen, J.)
• R v. Equinox Centre for Natural Health Inc., (Unreported June 29, 2012, Ont. C.J., Justice Gorewich, sitting on appeal)

Analysis:

[11] This is a matter of statutory interpretation. S. 10 of the Interpretation Act states as follows:

10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of anything that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

[12] I agree with the Crown in its assertion that Hamilton Health Sciences remains the leading case on this issue. Paragraph 28 of Newton-Thompson makes it clear that the Court of Appeal, in reaching their decision, applied the test set out in Hamilton Health Sciences, and simply arrived at a different result.

[13] The Court of Appeal in Newton-Thompson based its ruling on the wording of the Child and Family Services Act (Ontario), specifically the word “forthwith”. The provision in question required that care providers report suspected child abuse “forthwith”. There was no grace period. There is an obvious urgency to addressing suspicions of ongoing abuse of a child, which is fairly reflected in the legislation. That drove the purpose driven analysis in which the Court chose to emphasize the timeliness of the report over the making of the report itself. Neither of those distinguishing features are present in the case at bar.

[14] The Court in Hamilton Health Sciences interpreted the statute as emphasizing the making of the report as opposed to the timeliness of the report. Feldman, writing for the Court of Appeal at para 14:

[14] In my view, the interpretation of s. 21(1) that best ensures that the objects of the legislation are achieved emphasizes the employer's duty to report rather than the timeliness of the reporting. In s. 21(1), the legislature has placed a duty on the employer to report the injury to the Board and provided a reasonable (three-day) grace period for the employer to comply with the duty. It is my view that the offence continues until the employer complies with its reporting obligation.

[15] Further, in R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty. Ltd (1965) V. R. 615 (S.C.) at pa 620:

A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed.

[16] It is clear from above that there are two kinds of continuous offences. First, there is the type of offence which imposes incremental liability constituting a separate offence with a specified penalty for each day of non-compliance. Second, there is also a type of offence that is more passive, characterized by a simple failure to perform a duty imposed by law. In both, the offences are considered continuous until such time as the obligation is fulfilled.

[17] In Ontario (Ministry of Labour) v. Urus Industrial Corp. 2006 ONCJ 477, the Defendant was charged with failure to comply with orders under the Occupational Health and Safety Act. The Defendant in that case argued that the charge was laid outside the limitation period. The court applied the reasoning in Hamilton Health Sciences noting:

In my opinion, having read the Justice’s of the Peace judgment and reviewed the transcripts of the trial it is clear that the Justice of the Peace considered and applied the facts as he found them (clearly supportable on the evidence) to the case law presented by the parties and came to a logical and reasonable conclusion. Based on Ontario (Workplace Safety & Insurance Board) v. Hamilton Health Sciences Corp. (2000), 51 O.R. (3d) 83 (Ont. C.A.) the Justice of the Peace came to the conclusion that this offence was a continuing offence. His conclusion demonstrated no error in law or misconception of the evidence and in fact I agree with the Justice of the Peace.

To conclude that the offence was complete 30 days after the Notice would oblige the Inspector to either immediately begin a prosecution (thereby giving no leeway to the company) or repeatedly issuing notices. That is a ludicrous result.

[18] While Justice Grange in Rutherford says “it is considerably easier” to find a continuing offence where the legislation contains other provisions setting out daily penalties in the form of incremental liability, he does not say it is determinative of the issue. Moreover, I see no reason why the legislature cannot set out one provision in an Act, prescribing a daily penalty, and at the same time, enact other provisions within the same Act without daily penalties, that are continuous offences as well.

[19] Applying the decision of Hamilton Health Sciences to the case at bar, I note that there is an absence of urgency as compared with the facts in Newton-Thompson. That, as well as the statutory requirement that the childcare workers report their suspicions with respect to possible child abuse “forthwith”, distinguishes that case on the facts from both Hamilton Health Sciences, as well as the case before me.

[20] In both Hamilton Health Sciences and Newton-Thompson, the key factor was whether to emphasize timeliness over compliance, or vice versa. A review of the purposes of the legislation drove the analysis in both cases. It is therefore essential to consider the purpose of both the Employment Standards Act and the Employment Protection for Foreign Nationals Act.

[21] There is no statement of principles or preamble included at the beginning of either Act. Several cases have discussed the purpose of the Employment Standards Act. However, in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, at para 24 the Supreme Court of Canada cited a prior case on the issue quoting as follows at para 24:

24 In Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, at p. 1002, the majority of this Court recognized the importance that our society accords to employment and the fundamental role that it has assumed in the life of the individual. The manner in which employment can be terminated was said to be equally important (see also Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701). It was in this context that the majority in Machtinger described, at p. 1003, the object of the ESA as being the protection of “. . . the interests of employees by requiring employers to comply with certain minimum standards, including minimum periods of notice of termination”. Accordingly, the majority concluded, at p. 1003, that, “. . . an interpretation of the Act which encourages employers to comply with the minimum requirements of the Act, and so extends its protections to as many employees as possible, is to be favoured over one that does not”.

[22] More recently, in Wood v. CTS of Canada Co., 2018 ONCA 758, the Ontario Court of Appeal adopted the purpose set out in the Machtinger case and stated as follows:

(i) The purpose of the ESA

[45] The purpose of the ESA is to protect the interests of employees by requiring employers to comply with certain minimum standards, including minimum periods of notice of termination: Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, [1992] S.C.J. No. 41, at p. 1003 S.C.R. Its objective is not to impose requirements on employers in excess of the statutory minimums. Tying the requirement to provide Form 1 notice to the director to when an employer gives what it intends to be common law reasonable notice, in excess of the statutorily required minimum notice period, is not consistent with the object of the Act of requiring employers to comply with certain minimum standards.

[23] I would ascribe a similar purpose (i.e. requiring employers to comply with certain minimum standards) to the Employment Protection for Foreign Nationals Act, at least with respect to the types of offences that the Defendant is charged with.

[24] Having considered the jurisprudence as well as the purposes of the both the Employment Standards Act and the Employment Protection for Foreign Nationals Act, I have concluded that the purpose of both Acts is best served by emphasizing the compliance with the Orders over the timeliness of said compliance. Certainly, from the perspective of the worker who has not been paid, getting paid is obviously the priority when compared with the timeliness of compliance. While timely payment for work done is important, it pales in comparison to the financial deprivation suffered by these eleven employees which has been ongoing for years now. Or to put it another way, “better late than never”.

[25] Having made that determination, I conclude that the offences charged in the case at bar are continuous offences. As a result, the prosecution has not missed the limitation period. The application to Quash is dismissed.

August 22, 2024 Signed: Justice of the Peace Scarfe