Ontario (Ministry of Labour, Training and Skills Development) v. New Leaf, 2025 ONCJ 333

ONTARIO COURT OF JUSTICE

DATE: June 16, 2025
Location: Newmarket, Ontario

PARTIES

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

— AND —

NEW LEAF: LIVING AND LEARNING TOGETHER AND COLIN LANG

BEFORE

Justice R.M. Robinson

Sentencing submissions heard 27 January 2025
Reasons for Judgment released on 16 June 2025

Counsel:
Steven Succi — counsel for the Crown
Alison Craig — counsel for New Leaf: Living and Learning Together Inc.
Greg Lafontaine — counsel for Colin Lang

INTRODUCTION

[1] On 12 February 2021, Sarafa Ashiru tragically drowned in the indoor swimming pool located within the recreation centre operated by New Leaf: Living and Learning Together Inc. [“New Leaf”].

[2] Following a lengthy trial, on 17 May 2024 I found New Leaf guilty of the following offences under the Occupational Health and Safety Act (OHSA):

• Count 1: Failing to take every precaution reasonable in the circumstances (by failing to ensure that Mr. Ashiru was a competent swimmer), contrary to s.25(2)(h) OHSA.
• Count 2: Failing to take every precaution reasonable in the circumstances (by failing to ensure that an additional worker was present at the pool and monitoring Mr. Ashiru while he used the pool), contrary to s.25(2)(h) OHSA.
• Count 4: Failing to provide supervision to a worker to protect the health and safety of the worker, contrary to s.25(1)(a) OHSA. [1]

[3] I also found Colin Lang, in his capacity as a supervisor, guilty of the following offences under the OHSA:

• Count 8: Failing to take every precaution reasonable in the circumstances (by failing to ensure that Mr. Ashiru was a competent swimmer), contrary to s.27(2)(c) OHSA.
• Count 9: Failing to take every precaution reasonable in the circumstances (by failing to ensure that an additional worker was present at the pool and monitoring Mr. Ashiru while he used the pool), contrary to s.27(2)(c) OHSA. [2]

[4] I must now determine the appropriate sentences for the corporate and individual defendants.

THE OFFENCES

[5] As the exact findings of fact are set out in detail in my reasons for judgment dated 17 May 2024, I will only provide a summary here.

[6] New Leaf was established in 1984 on 200 acres of land in Queensville, Ontario. It is a non-profit residential agency that provides support and services to adults with developmental disabilities and other complex needs including autism and dementia.

[7] The operations of New Leaf changed dramatically as a direct and indirect result of the COVID-19 pandemic. For example, several day programs, including swimming in the recreational pool, were no longer offered to the residents.

[8] One resident who was adversely affected by the shut down of day programs was client John, who suffered from a number of complex developmental and behavioural issues. Without the day programs to occupy him, John began to act out by engaging in significant property damage.

[9] Sarafa Ashiru and Jack Johnson were two Personal Support Workers employed by New Leaf who were assigned to John. In February 2021, as a result of John’s imposing size, complex issues and aggression, Mr. Johnson made it known to management that John needed to have two workers with him.

[10] In an effort to alleviate the difficulties that John was experiencing, a plan was formulated to re-open the pool specifically for John’s use. This plan included Jennifer Corrie (Residential Manager at the Elms residence where John resided) and Colin Lang (Manager of Day Programs).

[11] Two days before the drowning, Sherry Tucker (Aquatic Supervisor) had gone home sick. She was the only employee with lifeguard and life-saving qualifications. Further, she was the only employee with anecdotal knowledge of who was and who was not a competent swimmer, as New Leaf did not maintain a log of swimming proficiency.

[12] Ms. Tucker was not back to work when the drowning occurred on 12 February 2021. There was no policy in place prohibiting use of the pool in Ms. Tucker’s absence.

[13] At the time, a Pool Policy with a revision date of 12 April 2015 was in effect. It required a minimum of two staff, one of whom must be a “competent swimmer.” However, the designation of “competent swimmer” was not defined. There was no policy regarding the use of life jackets.

[14] The Pool Policy also required swimming to be planned 24 hours in advance through Ms. Tucker. Not only was there no back-up measure for when Ms. Tucker was away, but in this particular instance Ms. Tucker was not even made aware of John’s planned swim.

[15] There was no meaningful instruction regarding the Pool Policy. Although there was an annual requirement that employees “sign off” online on having reviewed all of the company’s 500-plus pages of policies, it was possible to scroll down and click “yes” without actually reading them. There was no meaningful testing or enforcement of the various company policies. In fact, Mr. Lang himself was not intimately familiar with the Pool Policy even though he was Manager of Day Programs.

[16] The morning of 12 February 2021, Mr. Ashiru picked up John to drive him to the recreation centre. Because of John’s recent aggressive behaviour, Jack Johnson refused to accompany them to the pool. When Mr. Ashiru said he would take John by himself, Mr. Johnson tried to talk him out of it. Unfortunately, Mr. Ashiru did not take Mr. Johnson’s advice.

[17] When asked by Ms. Corrie, Mr. Ashiru advised her that he knew how to swim. However, Ms. Corrie had never seen him swim, nor was she aware of any steps taken by New Leaf to confirm that he was a competent swimmer.

[18] Mr. Ashiru and John arrived at the pool, only to find that the doors were locked. Mr. Ashiru called Ms. Corrie, who in turn called Mr. Lang. Mr. Lang contacted Karen Tsialtis from housekeeping and instructed her to unlock the doors for them and, when they were done, to lock the doors again.

[19] Mr. Lang and Ms. Corrie then exchanged a series of text messages in which they expressed their doubt that Mr. Ashiru was a competent swimmer. When Ms. Corrie texted, “Wondering should he have 2 staff?”, Mr. Lang dismissed her concern, “No they are fine. As long that Ashiru can swim.”

[20] When Mr. Lang expressed that he was still nervous, he reassured himself and Ms. Corrie by texting, “I’m sure John will stay in shallow end.” This suggests a genuine concern for John’s well-being, but no thought whatsoever for Mr. Ashiru’s.

[21] The video footage from the pool is heartbreaking. It shows Mr. Ashiru enter the pool and instantly begin to struggle. As he began to drift farther and farther from the pool’s edge, John appeared to be oblivious to what was happening. Within seconds, Mr. Ashiru stopped flailing and sank to the bottom of the pool.

[22] Mr. Johnson became concerned when Mr. Ashiru and John had not returned from their swim by lunchtime. He drove to the pool to check on them. He discovered Mr. Ashiru’s lifeless body at the bottom of the pool.

SARAFA ASHIRU

[23] Mr. Ashiru was 50 years old at the time of his death. He was a husband and father of four children. The family resided in Nigeria, while Mr. Ashiru lived and worked in Canada with the goal of bringing them here once he was settled.

[24] By all accounts, Mr. Ashiru was a devoted employee of New Leaf. Like many of their staff, Mr. Ashiru was severely overworked during the COVID-19 pandemic because he wanted to provide the residents with the best possible care in the face of challenging circumstances.

[25] Victim Impact Statements were filed on behalf of his son Ayomide Ashiru, his son Ashiru Afeez and his daughter Ashiru Omoseke. A fourth child, Ashiru Aliyat, did not provide a Victim Impact Statement.

[26] Collectively, their statements paint the picture of a loving and much-loved father who shared a close relationship with his children despite the distance that separated them. Mr. Ashiru supported them financially in pursuit of their goal of joining him in Canada and pursuing their higher education.

[27] The children remain distraught at the loss of their father. Moreover, their ability to immigrate to Canada and attend post-secondary education has seemingly vanished as a direct result. It is clear that the emotional and concrete repercussions are both devastating and permanent.

COLIN LANG

[28] Mr. Lang’s wife, De’awn Kelly, testified on his behalf at the sentencing hearing. Her evidence was sincere and compelling.

[29] After obtaining his Bachelor of Social Sciences from the University of Ottawa in 2014, Mr. Lang began working at New Leaf, where Ms. Kelly had been working since 2012.

[30] Ms. Kelly was immediately impressed by Mr. Lang’s heartfelt desire to help those in need. He ran a baseball coaching clinic on a volunteer basis for underprivileged youth. He also provided mentorship to foster teens who lived with Ms. Kelly’s parents. Mr. Lang also volunteered for the York Region Special Olympics Association.

[31] After Mr. Lang’s best friend committed suicide in 2013, Mr. Lang spent many years raising funds for the Canadian Mental Health Association.

[32] Ms. Kelly described Mr. Lang as a loving father to their two little girls, Chloe (four years old) and Charlotte (two months old).

[33] The passing of Mr. Ashiru had a profound effect on Mr. Lang. Ms. Kelly observed a drastic change in his demeanour. He became withdrawn and isolated. He suffered through severe bouts of anxiety and depression. Fortunately, Mr. Lang began to see a therapist to address these issues.

[34] It was clear to me from Mr. Lang’s testimony during the trial that he was a devoted New Leaf employee who was committed to the well-being of their clientele. Although he was overworked during the pandemic, he did his best to provide uninterrupted and attentive service to New Leaf’s residents.

[35] I find that Mr. Lang’s tragic lapse in judgment on 12 February 2021 was significantly motivated by his genuine desire to find a way to help client John. However, this came at the expense of Mr. Ashiru’s safety.

NEW LEAF

[36] The evidence I heard during the course of the trial, as well as the evidence presented at the sentencing hearing, including a video montage and the testimony of Colleen Ashmore-Miehm (Executive Director) and Tracie Lindblad (Board of Directors member), leaves no doubt that New Leaf is a remarkable facility. I accept Ms. Lindblad’s evidence that it is the best such facility in the Greater Toronto Area for individuals with complex needs.

[37] New Leaf is a residential agency providing a home environment for its clientele and individualized opportunities that allow them to achieve their maximum potential. It consists of 13 homes supporting approximately 93 residents and 10-15 non-resident individuals. Ms. Ashmore-Miehm estimated that the wait list for individuals meeting New Leaf’s criteria consisted of approximately 5,000 people in Ontario. Ms. Lindblad estimated that the waiting list for residential placements for individuals with autism in Ontario was approximately 30 years. In other words, there is no dispute that New Leaf is an extremely valuable and scarce commodity.

[38] New Leaf receives its funding from the Ministry of Children, Community and Social Services [“MCCSS”]. The funding covers mortgages and maintenance on the seven residential homes owned by New Leaf that are not yet fully paid off. The only other sources of revenue are via private donations and grants, which are highly competitive.

[39] I understand that the sector as a whole is chronically under-funded. MCCSS funding has not kept pace with the rise in operational costs. Ms. Ashmore-Miehm advised that it is projected that the beginning of 2028 will see a deficit of $308,000 right off the top, not to mention an estimate of $700,000 worth of maintenance work that has been assessed as necessary.

[40] According to Ms. Ashmore-Miehm, any substantial fine levied against New Leaf would not only clean out their reserves but would also adversely affect their ability to provide services. As a matter of common sense, in the absence of additional MCSS funding or a spike in donations, a substantial fine would reduce the number of individuals admitted into New Leaf and/or the breadth of services offered.

POSITIONS ON SENTENCE

[41] Counsel for the Ministry of Labour, Immigration, Training and Skills Development [“The Ministry”] seeks a fine in the range of $75,000 to $100,000 for each of counts 1, 2 and 4, plus the mandatory victim fine surcharge [“VFS”] (25 percent) for New Leaf.

[42] With respect to Mr. Lang, the Ministry seeks either (1) a fine of $12,000 for each of counts 8 and 9, plus the mandatory VFS; or (2) 6 days jail to be served intermittently, plus $6,000 on each of counts eight and nine, plus the mandatory VFS.

[43] Counsel for New Leaf argues that the particular circumstances of these offences and of this not-for-profit company call for a nominal fine in the range of $100 to $500.

[44] Counsel for Mr. Lang submits that the circumstances of these offences and of his client do not call for a custodial sentence, but rather a fine of $2,500 on each of counts eight and nine, followed by a period of probation.

THE LEGISLATION

[45] The provisions of the OHSA that were in effect on 12 February 2021 held that the maximum sentence for a person is a $100,000 fine, or imprisonment for a term of not more than 12 months, or both.[3]

[46] As of 12 February 2021, the OHSA allowed a maximum sentence for a corporation of $1,500,000.[4]

[47] The current OHSA provisions permit the court sentencing a person to make any prescribed order in addition to any fine or imprisonment that is imposed. This provision (s.66(5) OHSA) was not in place on 12 February 2021. Thus, it appears that the OHSA provisions in force at the time would not allow me to impose a probation order as part of my sentence for Mr. Lang. However, s.72(1)(b) of the Provincial Offences Act (POA) does provide me with said jurisdiction.

[48] Although s.66(2.2) of the current OHSA provisions was not in place on 12 February 2021, I find it of assistance in balancing the various principles and purposes of sentencing. It reads as follows:

Aggravating factors

(2.2) Each of the following circumstances shall be considered an aggravating factor for the purposes of determining a penalty under this section:

1. The offence resulted in the death, serious injury or illness of one or more workers.
2. The defendant committed the offence recklessly.
3. The defendant disregarded an order of an inspector.
4. The defendant was previously convicted of an offence under this or another Act.
5. The defendant has a record of prior non-compliance with this Act or the regulations.
6. The defendant lacks remorse.
7. There is an element of moral blameworthiness to the defendant’s conduct.
8. In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs.
9. After the commission of the offence, the defendant,
   i. attempted to conceal the commission of the offence from the Ministry or other public authorities, or
   ii. failed to co-operate with the Ministry or other public authorities.
10. Any other circumstance that is prescribed as an aggravating factor.

CASE LAW

[49] In the case of public welfare offences, such as prosecutions under the OHSA, the paramount sentencing consideration is general deterrence: “it is essential for the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare of the public.”[5]

[50] Particularly in the case of public welfare offences, the concept of deterrence should engage more than its usual negative connotation but should also include its positive aspects. As Zuber J.A. stated in R. v. Roussy:

But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the term deterrent in its widest sense. A sentence by emphasizing community disapproval of an act, and branding it as reprehensible has a moral or educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.[6]

[51] In my view, the above reference to “reprehensible” conduct is equally applicable to conduct that is inherently and obviously dangerous, such as the subject matter of this case. Indeed, in Cotton Felts the Court of Appeal relied on this passage in the context of a prosecution under the OHSA.

[52] As is the case with criminal offences, sentences under the OHSA import the principle of proportionality, namely that a sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.[7]

[53] Having said that, it is important to recognize that the degree of responsibility of an offender (moral blameworthiness) often operates differently in a criminal matter and in a regulatory offence under the OHSA. Whereas the former involves actual mens rea, the latter involves strict liability where liability is essentially founded on negligence.

[54] An employer’s post-offence compliance (or in this case New Leaf’s post-offence efforts to re-work their Pool Policy) is not a mitigating factor on sentence: “doing so would undermine one of the most important goals of the OHSA – accident prevention – and the statute’s most important sentencing principle – deterrence.”[8]

[55] In New Mex, Paciocco J.A. summarized the range of fines in cases involving fatalities as follows:

…more than a dozen other $250,000 fines imposed in fatality cases, but virtually all of the defendants were large companies, typically, publicly traded companies, international companies, municipal corporations or public utilities. Even fines over $150,000, but under $250,000, tend, with the occasional exception, to be imposed on large manufacturers, businesses with employees in the hundreds or businesses engaged in large-scale projects. Fines over $130,000 but under $150,000, tend to be imposed on firms with dozens of employees or more, or that work on large-scale projects.[9]

[56] I return to the leading case on sentencing under the OHSA, Cotton Felts, in which the Court of Appeal provided the following non-exhaustive list of factors to be considered in determining the quantum of the fine imposed:

1. the size of the company involved;
2. the scope of the economic activity in issue;
3. the extent of actual and potential harm to the public; and
4. the maximum penalty prescribed by statute.[10]

ANALYSIS

The Cotton Felts Factors

The Size and Scope of the Defendants’ Operations

[57] New Leaf is a large corporation that employs approximately 150 workers and services approximately 100 clients, most of whom reside on the premises. It is a not-for-profit company that obtains its funding through the MCCSS and through donations.

[58] The evidence before me paints a grim picture of New Leaf’s financial position, particularly beginning the start of 2028. As is not uncommon in that sector, New Leaf has rising costs, an aging clientele with increasingly demanding needs and is chronically underfunded.

[59] The evidence of Ms. Ashmore-Miehm was that $650,000 of New Leaf’s $900,000 in fund-raising reserves is earmarked for specific operational needs and capital expenses.

[60] Mr. Lang is obviously one individual. I have been provided with very little information with respect to his financial position. From what is before me, I gather that he is a young husband and father of two little girls who is no longer employed by New Leaf. I was advised that he obtained employment in a different field in April 2023.

[61] Other than that, I have no information about Mr. Lang’s savings, details about his current employment, his salary or his living expenses.

The Extent of Actual and Potential Harm

[62] The actual harm in this case is evident: a man died in the course of his duties.

[63] The potential harm was significant. The actions and inaction of Mr. Lang and New Leaf also put client John in grave danger. Had John begun to struggle in the pool, Mr. Ashiru would clearly not have been in a position to render any life-saving assistance. There very well could have been two fatalities on 12 February 2021.

The Maximum Penalty Prescribed by Statute

[64] As observed above, the maximum sentences for both individuals and corporations have steadily increased over time. For individuals, the maximum sentence has gone from $25,000 (prior to December 2017) to $100,000 (at the time of these offences) to $500,000 (at present). For corporations, it has increased from $500,000 (prior to December 2017) to $1.5 M (at the time of these offences) to $2 M (at present).

[65] This increase in maximum sentences is significant, as it reflects the evolving qualification of the gravity of an offence. In R. v. Friesen, the Supreme Court of Canada explained the significance of Parliament’s decision to increase maximum sentences:

Maximum sentences help determine the gravity of the offence and thus the proportionate sentence. The gravity of the offence includes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity… Maximum penalties are one of Parliament’s principal tools to determine the gravity of the offence… Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament “wanted such offences to be punished more harshly (Lacasse, at para 7). An increase in the maximum sentence should thus be understood as shifting the distribution of proportionate sentences for an offence.[11]

[66] The significant maximum sentences here ($100,000 for Mr. Lang and $1.5 M for New Leaf) provide concrete support for my conclusion that these offences were objectively extremely serious.

Aggravating and Mitigating Factors

[67] I find the following aggravating factors to be present in this case:

• The offences committed by Mr. Lang and New Leaf resulted in the death of one of their workers.
• Mr. Lang and New Leaf were reckless in carrying out their duties.
• There is an element of moral blameworthiness to Mr. Lang’s conduct in that he turned his mind to Mr. Ashiru’s safety but then dismissed his own concern, instead focusing only on client John’s safety.
• The actions and inaction of Mr. Lang and New Leaf also put John’s life in danger.
• The risk associated with swimming is so obvious that what happened here was entirely foreseeable and preventable.
• The impact on Mr. Ashiru’s family has been and continues to be profound.

[68] There are a number of mitigating factors, namely:

• Mr. Lang devoted all of his time and effort to assisting the clientele of New Leaf.
• At the time, Mr. Lang was overworked as a result of COVID-19-related staff shortages.
• Mr. Lang’s antecedents are exemplary, including significant work in the community.
• Mr. Lang has not committed similar offences before or after this incident.
• Mr. Lang has a young family to support.
• I accept Mr. Lang’s remorse as genuine. This tragic incident has taken a tremendous toll on Mr. Lang’s mental health.
• New Leaf is a one-of-a-kind facility catering to the needs of many individuals with complex issues.
• New Leaf was trying to continue servicing its clientele despite the effects of the COVID-19 pandemic, financial pressures and staffing shortages.
• New Leaf has not committed similar offences before or after this incident.
• Any fine imposed on New Leaf will indirectly negatively impact its current or prospective clientele.

[69] It bears mention that New Leaf’s attempt to revise its Pool Policy after Mr. Ashiru’s drowning is not a mitigating factor: “The court should not have discretion to treat an employer’s post-offence compliance, though statutorily required, as a mitigating factor on sentence. Doing so would undermine one of the most important goals of the OHSA – accident prevention – and the statute’s most important sentencing principle – deterrence.”[12]

[70] It also bears mention that the decision by Mr. Lang and New Leaf to take this matter to trial is not an aggravating factor. It simply represents the absence of a significant mitigating factor.

DECISION ON SENTENCE – COLIN LANG

[71] I disagree with the Ministry that a period of incarceration is necessary for Mr. Lang. While there are significant aggravating factors present, I note that Mr. Lang is a young man with a young family. He has no prior history of such conduct. To the contrary, he has led a life devoted to bettering the disadvantaged members of the community. I accept that this incident has, understandably, adversely affected his mental health.

[72] I also note that Jennifer Corrie, who was similarly situated to Mr. Lang as a supervisor, pleaded guilty to one count under s.27(2)(c) OHSA and received a fine of $10,000. I have no information about Ms. Corrie’s circumstances. However, I also have not been provided with any information about Mr. Lang’s financial situation.

[73] Having considered the aggravating and mitigating factors, the applicable principles of sentencing, the applicable case law and the submissions of counsel, I conclude that the appropriate sentence for Mr. Lang is as follows:

Count 8: Failing to take every precaution reasonable in the circumstances (by failing to ensure that Mr. Ashiru was a competent swimmer), contrary to s.27(2)(c) OHSA:

• Fine of $12,000;
• VFS of $3,000 (25%);

Count 9: Failing to take every precaution reasonable in the circumstances (by failing to ensure that an additional worker was present at the pool and monitoring Mr. Ashiru while he used the pool), contrary to s.27(2)(c) OHSA:

• Fine of $12,000;
• VFS of $3,000 (25%);

Total amount payable: $30,000. 5 years to pay.

DECISION ON SENTENCE – NEW LEAF

[74] As with Mr. Lang, there are powerful mitigating factors related to New Leaf. That the work they do, and have been doing for decades, is invaluable to many individuals with complex needs is beyond dispute. No other incidents have occurred before or after Mr. Ashiru’s tragic drowning.

[75] I am troubled by New Leaf’s grim financial picture that has been painted. The reality is that the greater the fine, the more current or prospective clients will suffer. This does not sit well with me.

[76] However, I cannot lose sight of the fact that a man died as a result of New Leaf’s negligence. Just as New Leaf’s clients are worthy of New Leaf’s protection, so too are New Leaf’s employees. So, too, was Mr. Ashiru.

[77] As Justice Parfett emphasized in a similar case:

Workers at [a publicly-funded institution] deserve the same protections as workers for a private employer and the fines imposed should not differ between public not-for-profit companies and private companies…[T]here is no provision in the legislation itself distinguishing private corporations from non-profit public institutions.[13]

[78] Having considered the aggravating and mitigating factors, the applicable principles of sentencing, the applicable case law and the submissions of counsel, I conclude that the appropriate sentence for New Leaf is as follows:

Count 1: Failing to take every precaution reasonable in the circumstances (by failing to ensure that Mr. Ashiru was a competent swimmer), contrary to s.25(2)(h) OHSA:

• $60,000 fine;
• VFS of $15,000 (25%);

Count 2: Failing to take every precaution reasonable in the circumstances (by failing to ensure that an additional worker was present at the pool and monitoring Mr. Ashiru while he used the pool), contrary to s.25(2)(h) OHSA:

• $60,000 fine;
• VFS of $15,000 (25%);

Count 4: Failing to provide supervision to a worker to protect the health and safety of the worker, contrary to s.25(1)(a) OHSA:

• $60,000 fine;
• VFS of $15,000 (25%);

Total amount payable: $225,000. 10 years to pay.

[79] I recognize that no sentence that I impose will make Mr. Ashiru’s family whole. The emotional, physical and financial toll this tragic event continues to have on Mr. Ashiru’s family may well be permanent.

[80] My preference would have been to either impose a restitution order directed toward Mr. Ashiru’s family or to order that the fines be directed payable to Mr. Ashiru’s family, in order to somehow mitigate the family’s economic loss.

[81] However, the unambiguous language of s.66 OHSA that was in effect in February 2021 makes it clear that a restitution order is not available. It is also outside of my jurisdiction to order part or all of the fines be made payable to Mr. Ashiru’s family rather than the Minister of Finance. Likewise, it is outside of my jurisdiction to impose a probation order with a condition that would direct payment to Mr. Ashiru’s family, pursuant to the general principle that one cannot do indirectly that which one cannot do directly.

[82] Restitution or fines made payable to an injured party or to a deceased’s family may well be an area worthy of consideration for future amendment to the OHSA.

[83] I would like to thank all counsel for their assistance throughout this extremely difficult case.

Released: 16 June 2025
Justice R.M. Robinson

FOOTNOTES

[1] I also found New Leaf guilty of count 3, failing to take every precaution reasonable in the circumstances (failing to ensure that Mr. Ashiru was wearing a life jacket or life vest while he used the pool), contrary to s.25(2)(h) OHSA, but on agreement of all parties that count was conditionally stayed pursuant to the principles set out in R. v. Kienapple, 1974 SCC 44, [1975] 1 S.C.R. 729 and R. v. Prince, 1986 SCC 27, [1986] 2 S.C.R. 480.

[2] Similarly, I also found Mr. Lang guilty of count 10, failing to take every precaution reasonable in the circumstances (failing to ensure that Mr. Ashiru was wearing a life jacket or life vest while he used the pool), contrary to s.27(2)(c) OHSA, but on agreement of all parties that count was conditionally stayed pursuant to the principles set out in R. v. Kienapple and R. v. Prince.

[3] Section 66(1) OHSA. Of note, prior to amendments to the OHSA in December 2017, the maximum sentence was a $25,000 fine and/or 12 months imprisonment; the maximum sentence under the current provisions of the OHSA is a $500,000 fine and/or 12 months imprisonment.

[4] Section 66(2) OHSA. Of note, prior to amendments to the OHSA in December 2017, the maximum sentence was a $500,000 fine; the maximum sentence under the current provisions of the OHSA is a $2,000,000 fine for a first offence.

[5] R. v. Cotton Felts Ltd., 1982 ONCA 178, [1982] O.J. No. 178 (C.A.), at paras 20, 23.

[6] R. v. Roussy, 1977 ONCA 1208, [1977] O.J. No. 1208 (C.A.), at para 5.

[7] Ontario (Ministry of Labour) v. New Mex Canada Inc., 2019 ONCA 30, at para 67.

[8] Ontario (Ministry of Labour) v. Flex-N-Gate Canada Co., 2014 ONCA 53, at para 19. See also paras 21, 23 and 30.

[9] New Mex, supra, at para 106.

[10] Cotton Felts, supra, at para 19.

[11] R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, at paras 96-97.

[12] Ontario (Ministry of Labour) v. Flex-N-Gate Canada Co., 2014 ONCA 53, at para 19.

[13] The Brockville Mental Health Centre v. The Ontario Ministry of Labour, 2019 ONSC 3805, at paras 15-16.