Robert W. Little

The appellant, Wal-Mart Canada Corporation, appealed its conviction under the Occupational Health and Safety Act for failing to keep a floor free of hazards or obstructions.

An employee tripped over an empty skid in an aisle while moving merchandise backwards with a manual skid jack, fell, and hit his head.

The appeal court upheld the trial judge's finding that the empty skid constituted a hazard or obstruction under section 11 of Regulation 851.

The court also upheld the finding that the appellant failed to establish the defence of due diligence on a balance of probabilities, noting the absence of safety sweep logs for the backroom area.

The appeal was dismissed.

The defendants, the Legislative Assembly of Ontario and the Office of the Ombudsman of Ontario, sought costs on a partial indemnity scale after successfully dismissing the plaintiff's action against the Assembly for lack of jurisdiction and striking out the plaintiff's statement of claim against the Ombudsman for disclosing no reasonable cause of action.

The court awarded the Legislative Assembly $49,983.67 and the Ombudsman $18,551.81, finding their initial claims for costs to be excessive but acknowledging the legal complexity and importance of the motions.

The plaintiff's financial circumstances were considered but not determinative in the costs award.

The plaintiff, a former Ombudsman of Ontario, commenced an action against the Office of the Ombudsman and the Legislative Assembly of Ontario, seeking declaratory relief and damages for wrongful dismissal and negligent misrepresentation.

The Office of the Ombudsman moved to strike the statement of claim, arguing it disclosed no reasonable cause of action as the Office is a statutory position, not a legal entity capable of an employment contract with the Ombudsman.

The Legislative Assembly moved to dismiss or stay the action for lack of jurisdiction, asserting parliamentary privilege over the appointment and management of parliamentary officers.

The court granted both motions, finding that the Office of the Ombudsman is not a separate legal entity capable of employing the Ombudsman, and that the Assembly's decisions regarding the appointment and non-reappointment of a parliamentary officer are protected by parliamentary privilege, thus falling outside the court's jurisdiction.

The Crown charged Wal-Mart Canada Corp. with failing to ensure that measures and procedures prescribed by regulation were carried out at a workplace, specifically that the floor be kept free of obstructions and hazards.

A maintenance worker tripped over an empty pallet left on the floor in the receiving area and fell, striking his head.

The worker died two weeks later, though the Crown conceded it could not prove causation.

The court found that the empty pallet constituted an obstruction and hazard under the applicable regulation.

While Wal-Mart had training programs, policies, and safety procedures in place, the court found the defendant failed to establish the due diligence defence on a balance of probabilities, primarily due to the absence of safety sweep logs for the receiving area and insufficient evidence of implementation of safety procedures in that specific location.

The defendant was found guilty.