Ryan John Conlin

The City of Greater Sudbury appealed its convictions under the Occupational Health and Safety Act following an incident where a worker was injured when a mobile elevating work platform tipped over after breaking through an unknown underground structure.

The trial judge had rejected the City's due diligence defence, finding it failed to conduct a more robust site inspection.

On appeal, the Superior Court found palpable and overriding errors, noting the site conditions prevented a full inspection, the City had hired an expert constructor to clear the site, and the underground structure was a latent defect unknown to all parties.

The appeal was allowed and the City was acquitted.

The Court of Appeal for Ontario denied the Crown's application for leave to appeal a Provincial Offences Appeal Court (POAC) decision upholding the City of Greater Sudbury's acquittal on charges under the Occupational Health and Safety Act.

The case arose from a fatal workplace accident involving a road grader operated by a contractor.

The court found that the trial judge and POAC judge properly applied the due diligence defence and that the issues raised by the Crown did not meet the high threshold for a second-level appeal.

The decision clarifies the application of due diligence in occupational health and safety prosecutions, emphasizing that such defences must be directed at the specific violations alleged and that findings of control are primarily factual.

This is an appeal by the Crown from an Ontario Court of Justice decision that acquitted the Corporation of the City of Greater Sudbury of charges under the Occupational Health and Safety Act.

The Supreme Court of Canada had previously found the City liable as an employer and remitted the matter to this court to consider the trial judge's finding of due diligence.

The appeal court reviewed the trial judge's conclusion that the City exercised due diligence, considering factors such as the City's degree of control over the workplace, delegation of control to the constructor, evaluation of the constructor's ability, and monitoring of the work.

The court found no palpable and overriding error in the trial judge's determination that the City had exercised due diligence, and consequently dismissed the Crown's appeal.

A municipality contracted with a constructor to repair a water main and dispatched quality control inspectors to the project site.

A pedestrian was fatally struck by construction equipment at an intersection where required safety measures — a fence and signallers — were absent.

The municipality was charged as an employer under the Occupational Health and Safety Act for failing to ensure that prescribed regulatory measures were carried out in the workplace.

On equal division, the Supreme Court of Canada dismissed the appeal, with the majority holding that proof of control over workers or the workplace is not required to establish the actus reus of the employer's duty under s. 25(1)(c); control is relevant only to the due diligence defence.

The dissent would have either remitted the matter or restored the acquittals on the basis that regulatory measures apply only to work within the employer's sphere of control.

The defendants, charged under the Occupational Health and Safety Act following a workplace fatality, brought motions for disclosure of Ministry inspectors' disciplinary files and a "Director's Memo" and for a stay of proceedings based on alleged abuse of process and unreasonable pre- and post-charge delay.

The court dismissed all motions, finding that the requested disciplinary files were not relevant first-party disclosure and that the Director's Memo was protected by solicitor-client privilege, with no "innocence at stake" exception met.

The court also determined that the pre- and post-charge delays were not unreasonable under the Charter's fair trial and delay provisions, and that the alleged investigative and prosecutorial misconduct did not meet the high threshold for an abuse of process stay.

K-Line Maintenance and Construction Limited appealed four convictions under the Occupational Health and Safety Act, stemming from a workplace accident that severely injured an employee.

The primary ground of appeal was that the Justice of the Peace failed to provide adequate reasons for the decision, thereby denying K-Line a meaningful right to appeal.

The court found the reasons provided by the Justice of the Peace to be factually and legally insufficient, making it impossible to understand the basis of the findings or the legal analysis.

Consequently, the appeal was allowed, the convictions were set aside, and a new trial was ordered.

This appeal concerned the interpretation of "employer" under the Occupational Health and Safety Act (OHSA) following a fatal workplace incident.

The City of Greater Sudbury, which had contracted out road repairs, was acquitted at trial and on first appeal, with courts finding it was neither an "employer" nor "constructor." The Court of Appeal for Ontario reversed, holding that the City was indeed an "employer" under OHSA because its own employees (inspectors) were present and performing tasks at the project site, satisfying the first branch of the "employer" definition.

The case was remitted to the appeal court to consider the City's due diligence defence, which had not been addressed by the appeal judge.

The Crown sought leave to appeal the acquittal of the City of Greater Sudbury on charges under the Occupational Health and Safety Act arising from a fatal construction accident involving heavy equipment backing up without a signaller.

The Crown argued that the courts below erred in their interpretation of the definitions of "constructor" and "employer" under the OHSA.

The motion judge granted leave to appeal on the narrow ground that the interpretation of "employer" in the OHSA engaged a question of law alone of public interest, specifically whether a municipality contracting out infrastructure work could fall within the definition of "employer" based on the degree of control it exercises over the project.

The Crown appealed the acquittal of the City of Greater Sudbury on six charges under the Occupational Health and Safety Act, following a fatal accident at a construction site.

The trial judge found that the City was neither a "constructor" nor an "employer" under the Act, and alternatively, exercised due diligence.

The appeal court upheld the trial judge's findings, concluding that the City's oversight role for quality control did not transform it into a constructor or employer, and dismissed the appeal.

A corporation charged with regulatory offences arising from a critical workplace injury brought a motion for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay.

The defendant argued that the delay from charge to trial exceeded the presumptive 18-month ceiling established in R. v. Jordan.

The court found that although the delay exceeded the ceiling, transitional provisions applied because both parties had relied on the previous legal framework requiring proof of prejudice.

The court dismissed the application, finding that the defendant had failed to actively pursue expedited proceedings, had only once raised Charter rights, and had consented to all adjournments.

The court also found the matter was complex and serious, involving a severe workplace injury and six days of trial time with competing expert evidence.

The applicant filed a Request for an Order During Proceedings to reactivate his deferred application.

The respondent acknowledged that the request complied with the Tribunal's Rules of Procedure.

The adjudicator found that the applicant complied with Rules 14.3 and 14.4 and ordered the application reactivated.

The applicant, a part-time employee who suffered a workplace injury, alleged discrimination on the basis of disability and reprisal after the employer reduced her hours of work and subsequently disciplined her.

The employer had initially accommodated the applicant by providing her with more hours in a modified position than another employee with similar restrictions to avoid paying WSIB Loss of Earnings benefits.

The employer later equalized the hours between the two accommodated employees, resulting in a reduction of the applicant's hours.

The Tribunal found that equalizing the hours did not constitute discrimination and that the employer was not required to maintain unnecessary work.

The Tribunal also dismissed the reprisal allegations, finding that the discipline imposed for attendance policy violations and inappropriate workplace comments was based on legitimate concerns and lacked retaliatory intent.

The respondents requested that the human rights application be dismissed under section 45.1 of the Human Rights Code, arguing that the applicant could have filed a union grievance to deal with the substance of the application.

The Tribunal denied the request, clarifying that section 45.1 only applies when another proceeding has actually dealt with the substance of the application, not when it merely could have.

As the relevant grievances had either been withdrawn or were not being pursued, no other proceeding had dealt with the substance of the application.

The applicant filed a human rights application alleging discrimination and reprisal based on disability against her employer, her union, and three personal respondents.

The Tribunal held a summary hearing to determine whether the application should be dismissed against the union and the personal respondents.

The Tribunal found no reasonable prospect of success against the union, as the assignment of hours was a management prerogative and there was no evidence the union participated in the decision.

The Tribunal also removed the personal respondents, applying the Persaud test, as the corporate respondents accepted full vicarious liability and were capable of remedying any infringement.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability and reprisal against her employer, her union, and several personal respondents.

The Tribunal held a summary hearing to determine whether the allegations against the union and union personal respondents had no reasonable prospect of success, whether the matter should be deferred to the WSIB, and whether the employer personal respondents should be removed.

The Tribunal dismissed the application against the union and union personal respondents, finding no factual foundation that the union's failure to file a grievance was based on discriminatory factors.

The Tribunal declined to defer the matter to the WSIB as there were no ongoing proceedings.

Finally, the Tribunal removed the employer personal respondents because the corporate respondents accepted vicarious liability for their actions.

The applicant filed an application alleging discrimination in employment on the basis of age.

A summary hearing was scheduled via teleconference, but the applicant failed to attend despite receiving notice.

Pursuant to Rule 3.13 of the Tribunal's Rules of Procedure, the Tribunal proceeded in the applicant's absence.

The application was dismissed as abandoned.

The applicant, a foster parent, alleged discrimination on the basis of creed and reprisal by the Children's Aid Society of Toronto (CAST) and Alliance Youth Services (AYS) after her foster care contract was terminated.

The Tribunal found that AYS violated the applicant's rights by considering discriminatory factors—including suspicions about her Christian faith-based youth camp and allegations of racism—in its decision to terminate the contract.

The Tribunal also found CAST liable because its employee's discriminatory suspicions contributed to AYS's termination decision.

However, the Tribunal dismissed the applications against the personal respondents and found that AYS would have terminated the contract even without the discriminatory factors, precluding a claim for lost income.

The applicant sought judicial review of an Ontario Labour Relations Board decision upholding a Ministry of Labour inspector's orders.

The inspector found the applicant in violation of O.Reg. 851/90, s.48 for stacking industrial drums without parallel planks between rows.

The applicant argued its method of staggering drums was a permitted variation under s.2 of the Regulation.

The Divisional Court held that the standard of review was reasonableness and found the Board was correct in concluding that the applicant's method was not a variation but a failure to use any physical separation as required.

The application for judicial review was dismissed.

The applicant employer association sought judicial review of an arbitrator's decision dismissing its application for final offer selection to amend a collective agreement.

The applicant argued the arbitrator lacked jurisdiction to dismiss the application and was required to choose one of the two final offers.

The Divisional Court dismissed the application, finding that under the pragmatic and functional approach, the arbitrator's interpretation of the collective agreement was subject to a patently unreasonable standard of review.

The court held it was not patently unreasonable for the arbitrator to conclude that the existence of a competitive disadvantage had to be verified before an offer could be selected, and that the arbitrator's factual findings were supported by evidence.