Ryan John Conlin

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 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.