Ontario Court of Justice (Central West Region)

Between:

His Majesty the King (Ministry of Labour, Immigration, Training and Skills Development) (Respondent)
— and —
The Econo-Rack Group Inc. (Konstant Manufacturing) (Applicant)

Ruling on s. 8 Charter Application

Before Justice of the Peace T.J. Howard
Application heard March 10 and 11, 2025, in Brantford, Ontario
Ruling released April 8, 2025, in Brantford, Ontario

Counsel:

• Mr. T. Fram and Ms. J. Chan for the Respondent
• Mr. K. Jull and Ms. D. Bikic for the Applicant

Introduction

[1] The applicant, The Econo-Rack Group (2015) Incorporated, doing business as Konstant Manufacturing (hereinafter “Konstant”), is charged with two offences under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended (OHSA). First, with failing as an employer to ensure that the measures and procedures prescribed by s. 45(b) of Ontario Regulation 851, R.R.O. 1990, as amended, were conducted at a workplace located at 132 Adams Blvd., Brantford, Ontario, contrary to s. 25(1)(c) of the OHSA. Second, with failing as an employer to provide information, instruction, and supervision to a worker to protect the health and safety of the worker at a workplace located at 132 Adams Blvd., Brantford, Ontario, contrary to s. 25(2)(a) of the OHSA.

[2] The alleged offences stem from an incident on May 1, 2023, which resulted in severe injury to a Konstant employee. Following the incident, an inspector from the Ministry of Labour, Immigration, Training and Skills Development (hereinafter “the Ministry”) attended Konstant’s facility at 132 Adams Blvd. to conduct an inspection. The inspector collected information from Konstant and its employees on more than one occasion, which forms evidence in this trial.

[3] The applicant served a notice of constitutional application alleging a breach of Konstant’s right to be free from unreasonable search and seizure guaranteed by s. 8 of the Charter[^1] and seeking an order excluding evidence pursuant to s. 24(2), as well as an order for costs pursuant to s. 24(1).

[4] The respondent, the Ministry, replied to the application arguing that there was no s. 8 breach, and the application ought to be dismissed.

[5] On March 10, 2025, Konstant was arraigned and entered a plea of not guilty. The trial commenced and I heard the constitutional application via a voir dire, which consisted of documentary and viva voce evidence. I reserved my decision. For the reasons contained herein I find no breach of s. 8 of the Charter.

Background

[6] The applicant filed an agreed statement of facts for trial, which outlines the events leading to the workplace injury at Konstant. The respondent filed a book of agreed documents related to the workplace inspection following the incident (see exhibit 2). I received evidence from Mr. David Kerr, Senior Director of Manufacturing at Konstant, in the form of an affidavit (see exhibit 1) and viva voce testimony. I also heard viva voce testimony from Inspector Mark Koehler from the Ministry. The above sources are helpful in establishing the undisputed factual foundation underlying the incident and the inspection.

[7] Konstant owns and operates a facility at 132 Adams Blvd., Brantford, Ontario, at which it manufactures steel pallet racking components. This facility is an industrial establishment, as defined by the OHSA, and is subject to regulations contained in Ontario Regulation 851, R.R.O. 1990, as amended.

[8] Mr. Rob Mokrzycki is an employee of Konstant and was employed as a forklift driver on the date of the incident.

[9] On May 1, 2023, during the night shift, large racking frames that had been previously painted were returned to one of two paint lines to be re-painted due to quality issues. The relevant racking frame was approximately 33 feet long and weighed almost 500 pounds. A “Kito” hoist used to lift materials, which was involved in the incident, is equipped with a removable below-the-hook attachment device into which the crane/hoist hook attaches.

[10] At approximately 11:00 pm on May 1, 2023, Mr. Mokrzycki observed two co-workers, Mr. Jimaleh and Mr. Sywyk, on the paint line having difficulty hanging a frame on the conveyor hooks. He dismounted the forklift and yelled to the paint line workers to stop the paint line. The paint line was stopped.

[11] Mr. Mokrzycki pulled the frame forward to have it placed onto the second paint line hook. The frame fell to the ground and the baseplate on the bottom struck Mr. Mokrzycki on the right foot. As a result, Mr. Mokrzycki’s right foot was seriously injured and two of his toes needed to be amputated.

[12] Inspector Koehler attended Konstant’s facility at 132 Adams Blvd. on May 3, 2023, in response to the incident and completed a field visit report summarizing his activities (see exhibit 2, tab 1). This report reveals that he received a summary of the incident from Konstant representatives, he took photographs of the scene, he conducted three audio-taped interviews with Konstant employees, and he then made a request for further materials (see exhibit 2, tab 1, pg. 2 - to be discussed later) and issued a compliance order. This order stated:

The employer shall provide information, instruction, and supervision to a worker to protect the health and safety of the worker. The employer shall ensure that a worker that operates a crane at the workplace shall be provided with information and instruction on the safe operation of the lifting device. At the time of this visit there was a worker who had been operating a crane without being provided with training on the safe operation of the lifting device. This order shall be complied with on or before May 8, 2023. [pursuant to OHSA s. 25(2)(a)] (see exhibit 2, tab 1).

[13] Inspector Koehler’s field visit report from May 3, 2023, also states:

The employer stated that the worker who was operating the crane on the night of the incident had not been provided with information and instruction on the safe use of the crane. An order has been issued to the employer to ensure that workers that operate a crane at the workplace shall be provided with information and instruction on the safe operation of the lifting device…This investigation is on-going… (see exhibit 2, tab 1) [emphasis added]

[14] Inspector Koehler re-attended Konstant on May 8, 2023, for a second field visit. His second field visit report states that the purpose of this follow-up visit was “…to continue the investigation that was initiated on May 3, 2023”. (see exhibit 2, tab 2) Inspector Koehler conducted one audio-taped interview, received a copy of the employer’s s. 51 OHSA accident report, and issued two compliance orders. The stated purposes of these orders were:

• Order #1 has been issued to the employer to ensure that materials (steel racking components) are transported, placed, or stored on the paint line in a manner that the racking components will not tip, collapse or fall during the loading process. The employer currently uses a lifting device attachment that is connected to the hook of the hoist and then placed on the racking components so that the materials can be placed/loaded onto the paint line.

• Order #2 has been issued to the employer to ensure that the lifting device attachment piece (attached to the crane hook) that is positioned on the racking component when materials are loaded onto the paint line shall be thoroughly examined by a competent person to determine its capacity of handling the maximum load as rated at least once a year. The employer did not have any inspection reports for the lifting device attachment to determine that it is capable of handling the maximum load as rated…This investigation is on-going. (see exhibit 2, tab 2)

The orders themselves are also contained in the field visit report.

[15] On May 8, 2023, Inspector Koehler also completed an “off-site visit report” detailing that he visited with injured worker Mr. Mokrzycki at his home and conducted an audio-taped interview. (see exhibit 2, tab 4)

[16] Inspector Koehler visited Konstant a third time on June 29, 2023, and completed a field visit report (see exhibit 2, tab 3). The stated purpose of this visit was:

A field visit was conducted on this date to audit compliance with the Occupational Health and Safety Act. The focus of the visit was to review compliance with the one compliance order previously issued by this inspector that is currently outstanding.

[17] On June 29, 2023, Inspector Koehler, according to his field visit report, viewed a new hook attachment that Konstant had fabricated, as well as a demonstration by Konstant of how the new hook attachment would be placed on a racking frame. Inspector Koehler took pictures on this date and determined that Konstant had not complied with order #1 from his prior visit. Inspector Koehler issued Konstant a “notice to employer” for failing to comply with the order. The notice highlighted ss. 66(1) and 66(2) of the OHSA which are the offence and penalty sections for individuals and corporations respectively. (see exhibit 2, tab 3)

Positions of the Parties

The Applicant

[18] The applicant takes the position that Inspector Koehler formed reasonable and probable grounds that there was non-compliance with the OHSA at his initial visit to Konstant on May 3, 2023. Thus, the applicant argues, Inspector Koehler “crossed the Rubicon” on this day, as the “predominant purpose” of his inquiry shifted from a regulatory inspection to an investigation of penal liability. The applicant highlights the Supreme Court of Canada decision in R. v. Jarvis which holds that an inspector, upon crossing the Rubicon, requires judicial authorization before gathering further evidence of an offence. In the case before me, no search warrant was applied for or obtained by Inspector Koehler at any point.

[19] The applicant points to the wording in s. 57(1) of the OHSA, which deals with orders where non-compliance is found. That section reads:

Where an inspector finds that a provision of this Act or the regulations is being contravened, the inspector may order, orally or in writing, the owner, constructor, licensee, employer, or person whom he or she believes to be in charge of a workplace or the person whom the inspector believes to be the contravener to comply with the provision and may require the order to be carried out forthwith or within such period of time as the inspector specifies. R.S.O. 1990, c. O.1, s. 57 (1).

[20] The applicant argues that by issuing a compliance order on May 3, 2023, Inspector Koehler necessarily had reasonable grounds to believe that non-compliance had occurred, which is an offence under s. 66(1). From this point on, the applicant argues, Inspector Koehler was in an adversarial relationship with Konstant, thus requiring that he obtain a search warrant to search for and seize any evidence.

[21] The applicant further argues therefore, that all materials that Inspector Koehler requested and obtained following his initial visit (including from visits on May 8 and June 29) were unlawfully obtained and ought to be excluded pursuant to s. 24(2) of the Charter.

[22] At paragraph 10 of the applicant’s factum, the applicant summarizes an email exchange between Counsel for the applicant and Counsel for the respondent in which Counsel for the applicant asked Counsel for the respondent “Is there a specific date on which Inspector Koehler reached his conclusion that he had grounds to lay charges?” According to the applicant, Counsel for respondent answered “no.” Inspector Koehler testified about when he formed grounds, which I will discuss later. The applicant argues that the failure of the Ministry to clearly delineate between the workplace inspection and any investigation of penal liability in the case before me leads to an unacceptable level of vagueness and allows for an inference to be drawn that Inspector Koehler crossed the Rubicon on his first visit to Konstant.

[23] The applicant also argues that the failure of the Ministry to alert Konstant to the possibility of charges, via service of a search warrant or otherwise, prevented Konstant from retaining legal advice and/or an expert to analyze the incident and materials involved therein. The applicant points out that Konstant discarded the historic lifting device used at the time of the incident, because they were not expecting to be charged with an offence(s).

[24] The applicant states the relevant issues as follows:

a. Did inspector Koehler “cross the Rubicon” during his investigation at Konstant which would result in a s. 8 infringement of the Charter?
b. Should a s. 8 infringement of the Charter exclude all the evidence obtained by Inspector Koehler subsequent to the initial field visit on May 3, 2023?

[25] On issue #1, the applicant’s argument is organized around the fact that Inspector Koehler issued a compliance order on May 3, 2023, which in the applicant’s view, means that he established an adversarial relationship with Konstant by discovering non-compliance with the OHSA. According to the applicant, a compliance order is determinative of the predominant purpose of further information requests, because it indicates that reasonable grounds of non-compliance (an offence) have been established.

[26] The applicant relies heavily on the decision in R. v. Skye View Farms Ltd. et al to support the position that Konstant had a reasonable expectation of privacy, which was violated by a warrantless search after Inspector Koehler had formed reasonable grounds of non-compliance. The applicant asserts that the alleged breach was serious, in part because it hindered a due diligence defence by Konstant because of the lengthy period before charges were laid and a loss of evidence.

[27] On issue #2, the applicant points to the three-part test in R. v. Grant and argues that when applied to this case it ought to result in the exclusion of all evidence gathered by Inspector Koehler after his initial visit to Konstant. The applicant concedes that the evidence in question is reliable but argues that the breach was serious and the level of intrusion high because Inspector Koehler visited Konstant on three occasions to collect evidence. In the applicant’s view, the analysis in Skye View Farms, supra supports the exclusion of evidence in the case before me because the positions of the defendants and the actions of the State are analogous in the two cases.

[28] The applicant seeks an order pursuant to s. 24(2) of the Charter excluding all evidence gathered by Inspector Koehler after May 3, 2023, and an order pursuant to s. 24(1) of the Charter for costs associated with the application.

The Respondent

[29] The respondent filed a statement of law in response to the application, which informs their position on the matter. In general terms, the respondent’s position is that the applicant has a reduced expectation of privacy in the regulatory context – as an employer in the industrial operations sphere. Further, the respondent highlights that the Ministry’s inspectors have broad inspection powers under s. 54 of the OHSA, which allow them to enter workplaces to search for and seize evidence without a warrant. The respondent argues that these powers are designed to identify contraventions of the OHSA to ensure worker safety, and doing so does not signal a shift in the predominant purpose, nor does conducting a detailed and thorough inspection. To support this position, the respondent points to the purpose of inspections in the regulatory context as described in the Supreme Court of Canada case Comité paritaire de l'industrie de la chemise v. Potash at paragraph 13:

“The underlying purpose of inspection is to ensure that a regulatory statute is being complied with…While regulatory statutes incidentally provide for offences, they are enacted primarily to encourage compliance. It may be that in the course of inspections those responsible for enforcing a statute will uncover facts that point to a violation, but this possibility does not alter the underlying purpose behind the exercise of the powers of inspection. The same is true when the enforcement is prompted by a complaint. Such a situation obviously at variance with the routine nature of inspection. However, a complaint system is often provided for by the legislature itself as it is a practical means not only of checking whether contraventions of the legislation have occurred but also of deterring them.”

[30] Moreover, the respondent argues that the identification of non-compliance is not synonymous with reasonable grounds to believe that an offence(s) has been committed and references the decision in R. v. Canada Brick Ltd. for support.

[31] The respondent also argues that the potential or possibility of a prosecution does not make prosecution the predominant purpose, and highlights that information collected during an inspection can be used in subsequent prosecutions, as was articulated in the cases of Automatic Coating[^7] and R. v. Tiffin respectively.

[32] Regarding the admission of evidence, the respondent also points to the Grant, supra factors, and highlights that the Court in that case cautioned against excluding reliable evidence, which may deprive the public of adjudication of the case on its merits. The respondent argues that the reliability of the evidence seized in the case before me, paired with the public safety purpose of the OHSA, suggests that the evidence ought to be admitted even in the case of a breach.

[33] The respondent asks that I dismiss the application for all these reasons.

Relevant Statutory Provisions

The Charter

[34] The interpretation of any Charter right must be purposive in nature, and although interpretation should also be liberal, the analysis is always constrained by the relevant purpose of the right in question.[^9] Further, Charter interpretation requires a contextual analysis, which includes, but is not limited to, the regulatory versus criminal nature of the matter, the principles and policy objectives underlying the law, and the balance between individual rights and societal interests.[^10]

[35] Section 8 of the Charter reads, “everyone has the right to be secure against unreasonable search or seizure.”[^11]

[36] The purpose of s. 8, as articulated by Dickson J. in Hunter et al. v. Southam Inc., is the protection of a reasonable expectation of privacy from unjustified state intrusion:

“Like the Supreme Court of the United States, I would be wary of foreclosing the possibility that the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy, but for purposes of the present appeal I am satisfied that its protections go at least that far. The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.”

[37] The proper analysis of an alleged s. 8 breach is a two-step process.[^13] It must first be determined whether a “search” or “seizure” took place, and if so, it must then be determined whether the search or seizure was reasonable. Both steps require a contextual analysis as described above, but the second question is not engaged unless the first has been answered in the affirmative.[^14]

[38] To determine the answer to the first question in the case before me, I must examine whether the conduct of the Ministry interfered with a reasonable expectation of privacy held by Konstant. Doing so requires that I apply the “totality of circumstances” test, focusing on the substance in the case before me.[^15] Importantly, this test determines both the existence and extent of the expectation, while any degree of a reasonable expectation of privacy is protected by s. 8 of the Charter.[^16] The applicant bears the onus on a balance of probabilities to prove that a search or seizure took place.

[39] The second step requires a determination of whether the search or seizure was reasonable. Here, the onus shifts to the State. A search is reasonable if: i) it is authorized by law, ii) the law itself is reasonable, and iii) the manner in which it is carried out is reasonable.[^17]

[40] If a breach of s. 8 is found, the issue of admission of evidence arises. Section 24(2) of the Charter reads:

Where, in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.[^18]

[41] The purpose of s. 24(2) is to uphold the good repute of the administration of justice.[^19] The focus is long-term and prospective, and engages three avenues of inquiry rooted in the public interests engaged by the section: i) the seriousness of the Charter-infringing state conduct, ii) the impact of the breach on the Charter-protected interests of the accused, and iii) society’s interest in the adjudication of the case on its merits.[^20] Grant, supra provides guidance regarding the analysis of each factor. The onus to demonstrate that the admission of evidence would bring the administration of justice into disrepute rests with the applicant.

The Occupational Health and Safety Act

[42] The OHSA and its regulations is public welfare legislation, remedial in nature, that seeks to uphold safety standards in workplaces and protect workers.[^21] Hill, J. in Canada Brick Ltd. outlined the philosophy of the OHSA as a regulatory scheme:

The philosophy of the Occupational Health and Safety Act, as a regulatory scheme, provides important context to this appeal:
(1) the Act is a remedial public welfare statute whose broad purpose is to provide a reasonable level of protection for workers by requiring employers to conform to certain minimum safety standards in the workplace
(2) having regard to its remedial purpose of protecting worker health and safety, the legislation is not to be given a narrow technical interpretation but should be interpreted in a manner consistent with its broad purpose.

See R. v. Brampton Brick Ltd., [2004] O.J. No. 3025 (QL) (C.A.), at para. 22; R. v. Timminco Ltd. (2001), 153 C.C.C. (3d) 521 (Ont. C.A.), at p. 528; R. v. The Corporation of the City of Hamilton (2002), 58 O.R. (3d) 37 (C.A.), at pp. 43-4; R. v. Cancoil Thermal Corp. and Parkinson (1986), 27 C.C.C. (3d) 295 (Ont. C.A.), at p. 298; R. v. Ellis-Don Ltd.; R. v. Morra; R. v. Indal Furniture System; R. v. Helmer Pederson Construction Ltd. (1991), 61 C.C.C. (3d) 423 (Ont. C.A.), at pp. 430, 436, 439, 449. At page 439 of the Ellis-Don case, Carthy J.A. (in dissent in the result) stated:

... the pressing and substantial objective of the Act, generally, [is] to prevent accidents in the work place ... The Act is directly focused on accident avoidance through measures taken in advance of mishaps and because it applies to a segment of commercial society where there is necessarily a dependence upon profits, measures are needed to assure that workers' safety is not forgotten. The Act is also directed to industries that are prone to a wide variety of dangers.”[^22]

[43] In the case before me, there are four sections of the OHSA which are particularly relevant. They are: i) the powers of an inspector contained in s. 54(1), ii) orders by inspectors where non-compliance found at s. 57(1), iii) warrants – investigative techniques, etc. found at s. 56(1), and penalties found at s. 66(1).

[44] Section 54(1) of the OHSA lists the powers that inspectors have for the purposes of carrying out their duties under the Act and regulations. The powers are broad including, but not limited to, the ability to enter workplaces at any time without a warrant or notice, take up and use items, require the production of information, remove documents, obtain expert assistance, examine and test things, make inquiries of persons, take photographs, and secure areas for further inspection.

[45] It is noteworthy that s. 54(2) of the OHSA distinguishes dwellings that are used as workplaces by requiring that inspectors obtain consent of the occupier or a warrant to enter. There appears to be an implicit recognition of the heightened expectation of privacy that individuals possess in workplaces that are also dwellings relative to pure commercial spaces.

[46] Section 57(1) of the OHSA states:

Where an inspector finds that a provision of this Act or the regulations is being contravened, the inspector may order, orally or in writing, the owner, constructor, licensee, employer, or person whom he or she believes to be in charge of a workplace or the person whom the inspector believes to be the contravener to comply with the provision and may require the order to be carried out forthwith or within such period of time as the inspector specifies. R.S.O. 1990, c. O.1, s. 57 (1).

Particularly relevant to this case, as will be discussed later, is the phrase “where an inspector finds that a provision of this Act or the regulations is being contravened…” Interpretation of this section is material to the issue of when an inspector forms reasonable grounds to believe an offence has been committed.

[47] Section 56(1) of the OHSA states:

On application without notice, a justice of the peace or a provincial judge may issue a warrant authorizing an inspector, subject to this section, to use any investigative technique or procedure or to do any thing described in the warrant if the justice of the peace or provincial judge, as the case may be, is satisfied by information under oath that there are reasonable grounds to believe that an offence against this Act or the regulations has been or is being committed and that information and other evidence concerning the offence will be obtained through the use of the technique or procedure or the doing of the thing. 2001, c. 26, s. 2.

[48] Finally, ss. 66(1) and (2) of the OHSA state respectively:

Subject to subsections (2) and (2.1), every person who contravenes or fails to comply with,
(a) a provision of this Act or the regulations;
(b) an order or requirement of an inspector or a Director; or
(c) an order of the Minister,
is guilty of an offence and on conviction is liable to a fine of not more than $500,000 or to imprisonment for a term of not more than twelve months, or to both. R.S.O. 1990, c. O.1, s. 66 (1); 2017, c. 34, Sched. 30, s. 4 (1); 2022, c. 7, Sched. 4, s. 2 (1).

Same

(2) If a corporation is convicted of an offence under subsection (1),
(a) the maximum fine that may be imposed upon the corporation is $2,000,000; and
(b) for a second or subsequent offence that results in the death or serious injury of one or more workers in a two-year period, the minimum fine that may be imposed is $500,000. 2024, c. 41, Sched. 3, s. 9.

Notably, any contravention or failure to comply with a provision of the Act or its regulations by a person is an offence.

Issues and Analysis

[49] In my view, this application engages three broad and overlapping issues: i) what was the “predominant purpose” of the Ministry’s inquiry at Konstant? ii) does the two-step s. 8 Charter analysis reveal a breach? and iii) if so, should any evidence be excluded?

[50] Courts dealing with alleged s. 8 Charter breaches in the context of OHSA inspections have structured their discussions differently.[^23] In my view, it is most appropriate to focus the discussion on the two-step Charter analysis, and within the scope of that analysis, determine the predominant purpose. This approach is worthy of some discussion.

[51] In closing submissions, the respondent argued that the applicant failed to present any meaningful evidence of Konstant’s reasonable expectation of privacy, as required by the two-step s. 8 analysis.

[52] Indeed, the focus of the applicant’s argument was the ”predominant purpose” analysis from Jarvis, supra. The alleged breach of s. 8, in the applicant’s view, flowed primarily from the alleged penal nature of the Ministry’s inquiry. This can be seen by the applicant’s framing of the issues noted above at paragraph 24 – the applicant does not list a reasonable expectation of privacy as one of the two issues. This is not to say there was no evidence presented that could lead to an inference regarding an expectation of privacy, but it was clear that the applicant’s focus throughout was on whether Inspector Koehler crossed the Rubicon.

[53] In my view, the Jarvis analysis is clearly the broader analysis, as it is determinative of whether “the full panoply of Charter rights are engaged”.[^24] However, in relation to a s. 8 analysis within the OHSA context, it appears to closely inform the “reasonableness (lawfulness) of the search” portion of the test.[^25] Plainly, as Jarvis, supra makes clear, if the prominent purpose of an OHSA inquiry is regulatory inspection, it is authorized by s. 54 of the Act. Conversely, if the predominant purpose is the collection of evidence for prosecution, it is not authorized by s. 54 of the Act. However, the information that forms the subject matter in either scenario must give rise to a reasonable expectation of privacy for the distinction to be relevant.

[54] The importance of properly applying the two-step analysis of an alleged s. 8 Charter breach in the regulatory context was expressed by the Prince Edward Island Court of Appeal in Skye View Farms, supra. The Court found that the structure of the lower courts’ analysis – focusing first on the distinction between an inspection and investigation was misguided. At paragraph 101 writing for the majority Murphy A.C.J.P.E.I. states:

I also agree that the trial judge and the SCAC judge did not conduct the test appropriately in assessing whether there has been a breach of the Charter. As the Crown submits, they turned the applicable two-step inquiry “on its head”. They decided first that there had been an unreasonable search and then turned to examining whether the respondent s had a reasonable expectation of privacy in their property, the potato field. Jurisprudence directs that the inquiry be concluded in the opposite manner.

[55] This approach may not apply neatly in all OHSA cases because the relevant issues will often bleed together.

a. Did Konstant have a reasonable expectation of privacy, such that the Ministry’s actions constituted a search or seizure?

[56] There are four lines of inquiry that guide the application of the required “totality of circumstances” test: i) what is the subject matter of the alleged search? ii) did the claimant have a direct interest in the subject matter? iii) did the claimant have a subjective expectation of privacy in the subject matter? and iv) was this subjective expectation of privacy objectively reasonable, given the totality of the circumstances?[^26]

[57] Both parties agree that there is a reduced expectation of privacy in highly regulated industries, such as the industrial operations industry in which Konstant operates. This is a function of the need for government to uphold safety, including through the inspection of documents and things, in these settings.[^27]

[58] The respondent submits that the applicant failed to present sufficient evidence to establish, on a balance of probabilities, that a reasonable expectation of privacy existed in the circumstances. In reply, the applicant argued that Mr. Kerr’s evidence that he felt “compelled” to provide the relevant information to Inspector Koehler throughout their interactions implies an expectation of privacy.

[59] Ultimately, I must look to all available evidence and relevant caselaw to make the determination.

The subject matter of the search

[60] Mr. Kerr states in his affidavit that on May 4, 2023, in response to Inspector Koehler’s request on May 3, 2023, he provided the following materials via email:

i) proof of employment and pay stub for Mr. Mokrzycki
ii) health and safety training records for Mr. Mokrzycki and witnesses
iii) crane annual inspection report for the involved crane
iv) pre-use crane inspection sheets for the day of the incident
v) crane certification for Mr. Mokrzycki
vi) Workplace Safety and Insurance Board (WSIB) Form 8 Mr. Mokrzycki
vii) Joint Health and Safety Committee (JHSC) meeting minutes dated April 27, 2023 and JHSC audit report for 2023
viii) Engineering drawing of part that fell on Mr. Mokrzycki’s foot
ix) Personal protective equipment (PPE) standard operating procedures
x) PPE signage from the paint load area
xi) Work Sequence Sheet re. interim corrective action
xii) the personal contact information for Mr. Harewood, Mr. Mokrzycki, Mr. Sywyk, Mr. Jimaleh, Mr. Parreira, and Mr. Cummings.

[61] It should be noted that on Inspector Koehler’s Field Visit Report from May 3, 2023, he did not list health and safety training records for witnesses (it was limited to Mr. Mokrzycki) or interim corrective action as requested materials. These appear to have been provided to Inspector Koehler at Mr. Kerr’s discretion. Mr. Kerr testified that this was indeed the case regarding the interim corrective action.

[62] Mr. Kerr also states in his affidavit that he provided Inspector Koehler with a copy of video footage on May 4, 2023, and a copy of the OHSA s. 51 report on May 5, 2023. This report is required by the OHSA whenever a critical injury takes place. Mr. Kerr states he provided this out of an “abundance of caution”, although Konstant was not of the view that the injury met the definition of “critical”.

[63] Mr. Kerr further states in his affidavit that on June 29, 2023, Inspector Koehler attended Konstant and took photographs in follow up to prior compliance orders.

[64] Importantly, the subject matter of an alleged search must not be examined “narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action.” [emphasis added][^28] In the case before me, a broad examination of the materials listed above reveals that some degree of both territorial and informational privacy interests is engaged.

[65] Inspector Koehler entered onto Konstant’s premises, took photographs of the space and materials therein, collected information about Konstant’s business operations and production methods (including video), collected engineering drawings of products, and captured information about Konstant’s employees.

[66] It is recognized that commercial spaces are lower in the hierarchy of territorial privacy than are dwellings.[^29] Similarly, while informational privacy includes commercial information,[^30] it is typically farther away from the biographical core of personal information which tends to reveal intimate details of the lifestyle and personal choices of individuals.[^31] Nonetheless, these weaker connections do not eliminate the potential for a violation of privacy.

[67] The subject matter contained within the materials gathered from Konstant have a potential to violate both territorial and informational privacy in my view, should the analysis reveal a breach.

The claimant’s interest in the subject matter

[68] Konstant clearly had an interest in the subject matter that was gathered by the Ministry. It is information that reveals details about their production, business operations, human resource practices, and the personal information of their employees.

The claimant’s subjective expectation of privacy

[69] Here the applicant did not make a strong case in my view. Mr. Kerr’s testimony did not explicitly mention any expectation of privacy. On multiple occasions he referred to feeling “compelled” to provide information to the Ministry upon request, but did not explain any perceived link to privacy for Konstant or any of the third parties implicated.

[70] However, the absence of a subjective expectation of privacy should not end the analysis, because expectations of privacy are normative rather than a descriptive standard:

The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by s. 8 to the values of a free and democratic society….Suggestions that a diminished subjective expectation of privacy should automatically result in a lowering of constitutional protection should therefore be opposed. It is one thing to say that a person who puts out the garbage has no reasonable expectation of privacy in it. It is quite another to say that someone who fears their telephone is bugged no longer has a subjective expectation of privacy and thereby forfeits the protection of s. 8. Expectation of privacy is a normative rather than a descriptive standard.[^32]

[71] Employers do – and should – expect some degree of privacy in their workplaces. In expressing that he felt “compelled” to provide information to the Ministry Mr. Kerr was expressing some measure of an expectation of privacy in my view, because his sentiment implies a degree of discomfort or reluctance in sharing the above details with the Ministry, absent his compulsion to do so.

Objective reasonableness

[72] It is generally understood that there is a reasonable expectation of privacy in business premises,[^33] although this is diminished in highly regulated sectors of society where records and documents are often produced in the ordinary course of business.

[73] The respondent correctly highlights that a less strenuous and more flexible standard of reasonableness generally applies in the regulatory context than in the criminal one because of the unique interests engaged and goals advanced.[^34]

[74] However, in my view the bar is not set high in establishing that there exists a reasonable expectation of privacy in an industrial production setting. In Skye View Farms, supra for example, the Court found that the Defendants possessed a reasonable expectation of privacy because federal inspectors were required to cover their boots prior to entering a potato field to prevent contamination of the soil. Similar expectations regarding access to and the exploration of production settings likely exist.

[75] Further, establishing the objective reasonableness of an expectation of privacy should be done with a view of the “dual-purpose” that Ministry inspectors serve (discussed in detail below). Ministry inspectors play the role of both auditor and investigator, gathering information for regulatory inspection purposes and for prosecutorial purposes. Employers’ expectations of privacy may be impacted by this fact and should be assessed considering it – with a benefit of the doubt given to employers who may not understand these important distinctions.

[76] Ultimately, I am of the view that Konstant has established on a balance of probabilities that they held a reasonable expectation of privacy in all the circumstances.

b. What was the predominant purpose of Inspector Koehler’s inquiry?

[77] At paragraph 88 the Court in Jarvis, supra states the essence of the “predominant purpose” test:

In our view, where the predominant purpose of a particular inquiry is the determination of penal liability, CCRA officials must relinquish the authority to use the inspection and requirement powers under ss. 231.1(1) and 231.2(1). In essence, officials “cross the Rubicon” when the inquiry in question engages the adversarial relationship between the taxpayer and the state. There is no clear formula that can answer whether or not this is the case. Rather, to determine whether the predominant purpose of the inquiry in question is the determination of penal liability, one must look to all factors that bear upon the nature of that inquiry. [emphasis added]

[78] At paragraph 89 the Court goes on to express the problem with viewing the existence of reasonable grounds as determinative of the issue:

To begin with, the mere existence of reasonable grounds that an offence may have occurred is by itself insufficient to support the conclusion that the predominant purpose of an inquiry is the determination of penal liability. Even where reasonable grounds to suspect an offence exist, it will not always be true that the predominant purpose of an inquiry is the determination of penal liability. In this regard, courts must guard against creating procedural shackles on regulatory officials; it would be undesirable to “force the regulatory hand” by removing the possibility of seeking the lesser administrative penalties on every occasion in which reasonable grounds existed of more culpable conduct. This point was clearly stated in McKinlay Transport, supra, at p. 648, where Wilson J. wrote: “The Minister must be capable of exercising these [broad supervisory] powers whether or not he has reasonable grounds for believing that a particular taxpayer has breached the Act.” While reasonable grounds indeed constitute a necessary condition for the issuance of a search warrant to further a criminal investigation (s. 231.3 of the ITA; Criminal Code, s. 487), and might in certain cases serve to indicate that the audit powers were misused, their existence is not a sufficient indicator that the CCRA is conducting a de facto investigation. In most cases, if all ingredients of an offence are reasonably thought to have occurred, it is likely that the investigation function is triggered. [emphasis added]

[79] Similarly, at paragraph 91 the Court expresses concern with setting the threshold too high:

The other pole of the continuum is no more attractive. It would be a fiction to say that the adversarial relationship only comes into being when charges are laid. Logically, this will only happen once the investigators believe that they have obtained evidence that indicates wrongdoing. Because the s. 239 offences contain an element of mental culpability, the state will, one must presume, usually have some evidence that the accused satisfied the mens rea requirements before laying an information or preferring an indictment. The active collection of such evidence indicates that the adversarial relationship has been engaged, since it is irrelevant to the determination of tax liability. Moreover, although there are judicial controls on the unauthorized exercise of power (Roncarelli v. Duplessis, [1959] S.C.R. 121; Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3, 2002 SCC 57, at para. 25), we believe that allowing CCRA officials to employ ss. 231.1(1) and 231.2(1) until the point where charges are laid, might promote bad faith on the part of the prosecutors. Quite conceivably, situations may arise in which charges are delayed in order to compel the taxpayer to provide evidence against himself or herself for the purposes of a s. 239 prosecution. Although the respondent argued that such situations could be remedied by the courts, we view it as preferable that such situations be avoided rather than remedied. It is for this reason that the test is as set out above. [emphasis added]

[80] Without limiting the generality of the factors to be considered, the Court provides a list of factors that a trial judge may consider at paragraph 94:

In this connection, the trial judge will look at all factors, including but not limited to such questions as:
(a) Did the authorities have reasonable grounds to lay charges? Does it appear from the record that a decision to proceed with a criminal investigation could have been made?
(b) Was the general conduct of the authorities such that it was consistent with the pursuit of a criminal investigation?
(c) Had the auditor transferred his or her files and materials to the investigators?
(d) Was the conduct of the auditor such that he or she was effectively acting as an agent for the investigators?
(e) Does it appear that the investigators intended to use the auditor as their agent in the collection of evidence?
(f) Is the evidence sought relevant to taxpayer liability generally? Or, as is the case with evidence as to the taxpayer’s mens rea, is the evidence relevant only to the taxpayer’s penal liability?
(g) Are there any other circumstances or factors that can lead the trial judge to the conclusion that the compliance audit had in reality become a criminal investigation?
It should also be noted that in this case we are dealing with the CCRA. However, there may well be other provincial or federal governmental departments or agencies that have different organizational settings which in turn may mean that the above factors, as well as others, will have to be applied in those particular contexts.

[81] This last emphasized portion above is particularly important in this case because the organizational setting and operations of the Ministry are quite different than that of the CCRA at the time of Jarvis. In carrying out their duties under the OHSA, Ministry inspectors wear two hats – they are both inspectors and investigators. Which of the two roles they are functioning in at any given moment depends on various factors, such as those stated in Jarvis, supra. It is conceivable that they can operate in both roles at the same time, as discussed below.

[82] Thus, determining the predominant purpose of a question or inquiry in the OHSA context is clearly more challenging, as there are no clear lines between the audit function of Ministry inspectors and their investigative function, save and except the lines they draw themselves. This “dual purpose” that Ministry inspectors serve is a function of the legislative scheme of the OHSA, which has as its overarching purpose workplace safety, but provides different mechanisms for achieving this end – most relevant here are compliance orders and offences.

[83] In my view, the primary distinctions are the remedial timeframes and scope. Compliance orders are remedial tools that operate in the near term and are limited in scope to a particular safety risk. Offences (prosecution) on the other hand, operate in a much longer term and seek to achieve compliance broadly through the court process and ultimately through court sanctions. These distinctions are important when considering the predominant purpose of Ministry inspectors’ actions.

[84] Section 57(1) of the OHSA uses the words “where an inspector finds that a provision of this Act or the regulations is being contravened…” Reading this section plainly, in context, and harmoniously with the scheme of the Act,[^35] reveals that the section is intended to resolve immediate and on-going risks to workplace safety in a timely fashion. Its ends are met once a compliance order is issued and complied with – filling the identified safety gap.

[85] On the other hand, s. 56(1) of the OHSA, which allows inspectors to apply for a warrant, uses language that is broader and has a clear investigatory spirit. It provides that a warrant may be granted where “there are reasonable grounds to believe that an offence against this Act or the regulations has been or is being committed and that information and other evidence concerning the offence will be obtained through the use of the technique or procedure or the doing of the thing.” [emphasis added] This section does not appear to be concerned with the timely resolution of safety issues, but rather with gathering evidence to substantiate an offence for prosecution in court.

[86] It does appear, as the applicant argues, that an inspector who issues a compliance order under s. 57(1) necessarily has reasonable grounds to believe that an offence has been committed. Again, s. 66(1) makes all contraventions or failures to comply an offence. The respondent argues that the two thresholds are not identical, as inspectors may not know the “who, what and how” at the time they issue a compliance order.

[87] Frankly, I fail to see how an inspector can “find” non-compliance happening without necessarily having “reasonable grounds to believe” that non-compliance is happening. Of course, inspectors must gather details about who is responsible and how, but this is not required to meet the threshold of reasonable grounds to believe an offence has taken place in most cases. Search warrants are designed to allow for the gathering of evidence often related to who is responsible and how, after an offence is revealed. The Ministry will no doubt have internal objectives and priorities which inform inspectors’ decisions to pursue investigations and lay charges, but this is separate from the legal threshold.

[88] Having said this, the Court in Jarvis, supra was clear that the formation of reasonable grounds is not determinative (see above) of the predominant purpose. It follows therefore, that the issuance of a compliance order in the OHSA context cannot be determinative either. It is one factor to consider. It appears to me, that where a compliance order is issued, yet information gathering continues, the most salient question is: what ends are being pursued by the specific inquiry? In my view, this is the most predominant factor determining the predominant purpose of the inquiry in question.

[89] If what is being pursued continues to be the timely remedy of ongoing risk to workplace safety, the predominant purpose of the inquiry cannot be said to be penal liability. If on the other hand, the evidence supports that the risk has been effectively mitigated, further information gathering will likely signal that an investigation is taking place. Of course, this may not always be the case and will require a nuanced analysis of the circumstances.

[90] Crucially, it may often be the case that both ends are being pursued at the same time and it may be near impossible to determine which is predominant without parsing the issues further. A Ministry inspector may be inspecting one aspect of an incident or complaint (to quickly remedy it) while simultaneously investigating another (to gather evidence of wrongdoing). This certainly exposes the inspector to difficult questions after the fact, but may be justified in the circumstances given the laudable goals of workplace safety legislation. It is one reason that Ministry inspectors ought to make thorough and detailed notes, not only of their activities, but of their justifications for seeking and obtaining pieces of evidence.

[91] The Court in Jarvis, supra recognizes the reality of simultaneous inquiries at paragraph 97:

The predominant purpose test does not thereby prevent the CCRA from conducting parallel criminal investigations and administrative audits. The fact that the CCRA is investigating a taxpayer’s penal liability, does not preclude the possibility of a simultaneous investigation, the predominant purpose of which is a determination of the same taxpayer’s tax liability. However, if an investigation into penal liability is subsequently commenced, the investigators can avail themselves of that information obtained pursuant to the audit powers prior to the commencement of the criminal investigation, but not with respect to information obtained pursuant to such powers subsequent to the commencement of the investigation into penal liability. This is no less true where the investigations into penal liability and tax liability are in respect of the same tax period. So long as the predominant purpose of the parallel investigation actually is the determination of tax liability, the auditors may continue to resort to ss. 231.1(1) and 231.2(1). It may well be that there will be circumstances in which the CCRA officials conducting the tax liability inquiry will desire to inform the taxpayer that a criminal investigation also is under way and that the taxpayer is not obliged to comply with the requirement powers of ss. 231.1(1) and 231.2(1) for the purposes of the criminal investigation. On the other hand, the authorities may wish to avail themselves of the search warrant procedures under ss. 231.3 of the ITA or 487 of the Criminal Code to access the documents necessary to advance the criminal investigation. Put another way, the requirement powers of ss. 231.1(1) and 231.2(1) cannot be used to compel oral statements or written production for the purpose of advancing the criminal investigation. [emphasis added]

[92] The Court points here to the importance for inspectors to consider informing employers of their rights, and to consider obtaining a warrant once they are investigating alongside an inspection. Failure to do these things may lead a court to find the Rubicon has been crossed, but not necessarily.

[93] Turning then to the case before me, examining the ends pursued by Inspector Koehler after he issued his first compliance order on May 3, 2023, is instructive. Overall, I found Inspector Koehler to be both credible and reliable. His testimony was largely consistent, both internally and externally. There was however, one area that was concerning, which I will discuss below.

[94] Inspector Koehler testified that he conducts both “proactive” and “reactive” inspections. He stated that the two do not differ in form, but the latter is usually conducted in response to a complaint, work stoppage, or injury. His inspection at Konstant on May 3, 2023, was obviously reactive in nature. He stated that when conducting a reactive inspection he is “…gathering information for the purpose of [my] inspection to determine whether or not there is any noncompliance and whether or not [I have] to issue any corrective measures or orders or contraventions to protect workers going forward to prevent a reoccurrence of the injury.”

[95] Inspector Koehler stated the following regarding his knowledge at the end of his first visit to Konstant on May 3, 2023:

“So at the end of May 3rd obviously I had a general indication of what may have occurred but I was far from knowing the what, why and how. I had asked for a number of documents from the employer which the employer was going to send me at a later date. So I hadn’t had a chance to review any of the documentation yet. I hadn’t spoken with two of the three key involved parties, the injured worker as well as one of the witnesses who was working as a loader, so I still was not in a position to determine exactly what had happened, why the material had fallen off or how the material had fallen off.” [emphasis added]

[96] When asked if he knew that Mr. Jimaleh’s lack of training on the crane contributed to the incident he stated that it “definitely would play a part to a – factor into it, but as one factor I wouldn’t of had the totality of what happened.”

[97] Hence, Inspector Koehler issued the compliance order on May 3, 2023, directing that Konstant ensure that it provides training and instruction to employees using the crane. It seems clear that Inspector Koehler’s intention here was to ensure that no other employees used the crane without being properly trained to do so safely. In my view, having acted on this specific risk, Inspector Koehler would likely have crossed the Rubicon and been engaged in an investigation of penal liability had he continued to gather information regarding employee training on the crane and the employer’s non-compliance on that issue. If this was the case, he would have needed a warrant.

[98] However, the materials that Inspector Koehler went on to request after his initial visit were not of this nature. Instead, he sought materials that spoke to proof of employment, how the incident unfolded (video), JHSC activities, the structure of the frame, health and safety training generally, information about the hoist, and WSIB forms. None of this leads me to conclude that Inspector Koehler’s ends were the investigation of penal liability.

[99] I view Inspector Koehler’s second visit in the same light. His stated purpose was to continue the inspection, after which he issued two additional orders. Inspector Koehler identified risks regarding the transport of steel racking components and the competence of the lifting device utilized (exhibit 2, tab 2). Again, having acted on these risks, Inspector Koehler would likely have crossed the Rubicon and been engaged in an investigation of penal liability had he continued to gather information about the transport of materials or the competence of the existing lifting device. He did not do this.

[100] Importantly, Inspector Koehler did re-attend Konstant on June 29, 2023, and did take five photographs of a revised hook fabricated by Konstant. His stated purpose was to determine compliance with his order issued on May 8, 2023, related to the transport of materials (see exhibit 2, tab 3). He determined there was non-compliance. At this juncture, by his own admission, Inspector Koehler had crossed the Rubicon. He testified that he believes he formed grounds to lay charges(s) in and around May 9 or 10, 2023, after reviewing all materials gathered from Konstant. It is unhelpful that Inspector Koehler failed to make notes about this shift in intentions, but the question remains: what ends was he attempting to meet when he took photographs and/or collected information on June 29, 2023? In my view, the evidence shows that he was attempting to ensure compliance with his prior order to ensure that materials were being transferred safely and workers were protected in the near term. In other words, there was no crossing of the Rubicon on this aspect of his inquiry.

[101] The applicant pointed out a few areas of Inspector Koehler’s testimony that were concerning and are worth discussing briefly here. First, Inspector Koehler testified that in 19 years as a Ministry Inspector he has never once applied for a search warrant. This is alarming, given that he estimates that he may have conducted up to 6000 inspections in this time. Second, Inspector Koehler testified that he does not make notes on his thought processes, and to his knowledge, neither do other Ministry Inspectors. Specifically, Inspector Koehler does not note the point at which he believes he has formed grounds to believe an offence has been committed and there is a decision to investigate. I agree with the applicant’s characterization – that this effectively creates a degree of immunity from the judicial oversight of Ministry decision making and its impacts on employers.

[102] In this case, I cannot accept that Inspector Koehler reliably recalls that he crossed the Rubicon on May 9 or 10, because he made no note to substantiate it. This did make available to me the inference that he crossed it sooner, as the applicant argues. While that is possible, the lack of notes is only one factor that I needed to consider, and based on the totality of evidence available to me in this matter, I do not find that to have been the case.

c. Was the search of Konstant reasonable?

[103] Having determined that Inspector Koehler’s predominant purpose was not the investigation of penal liability at the time he collected the evidence in question, his search was authorized by s. 54 of the OHSA. Further, the manner in which Inspector Koehler collected the materials was reasonable in my view. All materials were provided to him by Konstant, other than the photographs he took. Hence, the respondent has demonstrated that the Ministry’s search in this case was reasonable.

Costs

[104] The applicant seeks an order for costs pursuant to s. 24(1) of the Charter. In this case, no marked and unacceptable departure from the reasonable standards expected of the prosecution has been established. Thus, costs are not merited.

Conclusion

[105] There has been no violation of s. 8 of the Charter by the Ministry in this case. While Konstant had a reasonable expectation of privacy in the circumstances, the search and seizure of evidence by the Ministry was authorized by s. 54 of the OHSA, as it was properly part of a regulatory inspection. There is no need to make a finding regarding the exclusion of evidence pursuant to s. 24(2) of the Charter.

[106] The application is dismissed.

Justice of the Peace T.J. Howard

Footnotes

[^1]: The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [hereinafter the “Charter”]
[^2]: R. v. Jarvis, 2002 SCC 73, [2002] 3 SCR 757
[^3]: R. v. Skye View Farms Ltd. et al, 2022 PECA 1
[^4]: R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353
[^5]: Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de l'industrie de la chemise v. Sélection Milton, [1994] 2 S.C.R. 406
[^6]: R. v. Canada Brick Ltd., [2005] O.J. No. 2978
[^7]: R. v. Automatic Coating Limited (unreported, December 6, 2016, ONCJ, Mocha J.P.)
[^8]: R. v. Tiffin, 2008 ONCA 306
[^9]: R. v. Poulin, 2019 SCC 47, paras. 53-55
[^10]: R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154
[^11]: The Constitution Act, supra
[^12]: Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, pgs. 159-160
[^13]: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, para. 18
[^14]: Tessling, supra, para. 33
[^15]: Tessling, supra, para. 31-32; R. v. Edwards, [1996] 1 S.C.R. 128, para. 45
[^16]: R. v. Cole, 2012 SCC 53, para. 9
[^17]: R. v. Collins, [1987] 1 S.C.R. 265, para. 23
[^18]: The Constitution Act, supra
[^19]: Grant, supra, para. 67
[^20]: Grant, supra, para. 71
[^21]: Ontario (Ministry of Labour) v. W Roofing Ltd., 2011 ONCJ 494, para. 130; R. v. Greater Sudbury (City), 2023 SCC 28, para. 8
[^22]: W Roofing Ltd., supra; R. v. Canada Brick Ltd., [2005] O.J. No. 2978, para. 122
[^23]: See for example R. v. Samuel Son and Co., [2018] O.J. No. 2446; W Roofing Ltd., supra
[^24]: Jarvis, supra, para. 96
[^25]: Canada Brick, supra, para. 157(12)
[^26]: Cole, supra, para. 40
[^27]: Thompson Newspapers, supra, para. 127; Wholesale Travel, supra, para. 49
[^28]: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, para. 26
[^29]: Tessling, supra, para. 22
[^30]: Tessling, supra, para. 23
[^31]: R. v. Plant, [1993] 3 S.C.R. 281, pg. 293
[^32]: Tessling, supra, para. 42
[^33]: Canada Brick Ltd., supra, para. 157(7)
[^34]: Thompson Newspapers, supra, para. 127
[^35]: Rizzo & Rizzo Shoes Ltd., [1998] 1 SCR 27, para. 21; R. v. Hutchinson, 2014 SCC 19, para. 16