Ontario Superior Court of Justice

Court File No.: 23-13381-MO
Date: 2025/03/19

BETWEEN:
His Majesty the King, Respondent
and
Eastway Tank Pump and Meter Ltd. and Neil Greene, Applicants

Jason Wakely and Shakiba Azimi for the Crown
Mark Ertel and Kirstin Macrae for the Applicants

Heard: February 15, 2025

Ruling on Threshold Issue Regarding Certiorari

Anne London-Weinstein

Introduction

[1] The Applicants are the subject of a criminal investigation regarding an explosion that occurred in January 2022 at Eastway Tank, Pump & Meter (“Eastway”). Six employees died in the explosion and a seventh was seriously injured, sustaining burns to his face, hands and neck.

[2] The Applicants have not been charged with a Criminal Code, RSC 1985, c C-46 offence. An investigation has been underway since January 2023. They seek declaratory relief from the court regarding items seized pursuant to search warrants executed during the investigation.

[3] The Applicants’ original application sought an order granting the following:

(1) Certiorari to quash a series of production orders and search warrants;
(2) Mandamus in the form of a direction ordering the immediate return of all items seized pursuant to those production orders and search warrants;
(3) A declaration that the items seized pursuant to the impugned production orders and search warrants were all seized in violation of s. 8 of the Canadian Charter of Rights and Freedoms;
(4) An order, pursuant to s. 24(1) of the Charter, that all seized items be returned to the places from which the seizures were made; and
(5) A prohibition order preventing the Ottawa Police Service from reviewing all items and documents seized as a result of the four search warrants, pending the outcome of the Application.

[4] The Applicants modified their position and they sought only a declaration that the seizure of the items, pursuant to the impugned production orders and search warrants, was in violation of s. 8 of the Charter.

Position of the Parties

[5] The Applicants argue that this matter has been under investigation since January 2023 with no charges yet laid, and no firm forecast as to when charges can be expected. The stigma associated with being under criminal investigation for this long has generated prejudice to the Applicants’ business which, the Applicants argue, requires a declaration from the court with respect to an alleged s. 8 Charter violation in this case.

[6] The Respondent Crown concedes that discretion exists to grant Charter relief pre-charge, in this case in the form of a declaration, but maintains that this matter is best left to the trial judge. The issue before me is the threshold question of whether discretion should be exercised in favour of hearing the matter at this pre-charge stage of the proceedings, or whether it should be left to the trial judge.

Relevant Factual Underpinning of this Matter

[7] On April 5, 2024, Eastway pled guilty to charges under the Occupational Health and Safety Act, RSO 1990, c O.1 (“OHSA”), namely, (1) failing to take every reasonable precaution in the circumstances for the protection of workers, contrary to s. 25(2)(h) of the Act; and (2) failing to provide adequate information, instruction, and supervision to ensure the health and safety of workers, contrary to s. 25(2)(a) of the Act.

[8] Mr. Neil Greene also pled guilty to failing to take all reasonable care to ensure that the corporation complied with s. 25(2)(h) of the Act, contrary to s. 32 of the Act.

[9] As a result, Eastway was fined $600,000 and Mr. Greene was fined $80,000.

[10] After the OHSA charges were laid in January 2023, the Ottawa Police Service (OPS) commenced a criminal investigation into the explosion. The offences under investigation included criminal negligence causing death (s. 220 of the Criminal Code) and criminal negligence causing bodily harm (s. 221 of the Criminal Code).

[11] The OPS obtained seven separate production orders and six separate search warrants. The Applicants bring an application for certiorari, seeking as a remedy, a declaration that the seizure by the OPS was unlawful.

[12] As part of their investigation, between January 2023 and September 2023, the OPS obtained seven separate production orders and six separate search warrants as follows:

I) A Production Order for documents pursuant to s. 487.014(3) of the Criminal Code for the Incident Investigation Report prepared by the Ministry of Labour. The affiant was Det. Carissa Johnston, and the order was granted by Justice Wadden of the Ontario Court of Justice on January 13, 2023.

II) A Production Order for Documents pursuant to s. 487.014(3) of the Criminal Code for the Office of the Fire Marshal Draft Report and Final Report upon completion, authored by Det. Carissa Johnston and granted by Justice Wadden on January 20, 2023.

III) A Production Order for Documents pursuant to s. 487.014(3) of the Criminal Code for the “workplace policies and procedures” for Eastway from Transport Canada, authored by Det. Carissa Johnston, and granted by Justice Wadden on February 22, 2023.

IV) A Production Order for Documents pursuant to s. 487.014(3) of the Criminal Code for the Inspection reports, non-compliance reports and any other documentation related to Eastway from Transport Canada, authored by Det. Carissa Johnston and granted by Justice Wadden on April 3, 2023.

V) A Search Warrant pursuant to s. 487 of the Criminal Code permitting the search of an Apple iPhone located at the scene and belonging to deceased victim Matthew Kearney, authored by Det. Stephen Love, and granted by Justice Wadden on April 28, 2023.

VI) A search warrant pursuant to s. 487 of the Criminal Code permitting the search of an Acer laptop belonging to deceased victim Kayla Ferguson, authored by Det. Stephen Love and granted by Justice Wadden on April 28, 2023.

VII) A Production Order for Documents pursuant to s. 487.014(3) of the Criminal Code of the insurance claim documents from the insurance underwriter for Eastway, authored by Det. Stephen Love and granted by Justice Wadden on May 8, 2023.

VIII) A Production Order for Documents pursuant to s. 487.014(3) of the Criminal Code for records related to fuel deliveries from W.O. Stinson & Son Ltd. to Eastway, authored by Det. Stephen Love and granted by Justice Wadden on May 8, 2023.

IX) A Production Order for Documents pursuant to s. 487.014(3) of the Criminal Code for the records of hazardous waste pickups at Eastway, authored by Det. Stephen Love, and granted by Justice Wadden on May 10, 2023.

X) A Search Warrant pursuant to s. 487 of the Criminal Code permitting the search of suite 301 of office building located at 84 Hines Road, a temporary office being used by Mr. Greene, authored by Det. Carissa Johnston and granted by Justice Wadden on July 18, 2023.

XI) A Search Warrant pursuant to s. 487 of the Criminal Code permitting the search of Mr. Greene’s residence located at 100 Broughton Street, authored by Det. Carissa Johnston, and granted by Justice Clifford of the Ontario Court of Justice on July 26, 2023.

XII) A Search Warrant pursuant to s. 487 of the Criminal Code permitting the search of 26 boxes of documents and several digital which were located when executing the 84 Hines Road Search Warrant. These boxes were subsequently housed in an OPS locker pending a judicial authorization permitting their search, authored by Det. Michael Cathcart and granted by Justice Wadden on September 27, 2023.

[13] The Applicants maintain that the affidavit supporting the January 13 production order did not disclose reasonable grounds to believe that offences had been committed in contravention of ss. 217.1, 220 and 221 of the Criminal Code.

[14] The affidavit at para. 30 reads: “I believe that the Ministry of Labour Incident Investigation Report, in its entirety, unredacted will afford evidence that will assist in determining whether Criminal Negligence under s. 217.1, 220 and/or 221 of the Criminal Code of Canada was met. Alternatively, review of the Ministry of Labour Incident Investigation Report may assist in exculpating Eastway Tank Pump & Meter Limited and the owner, Neil Greene, of any criminal liability.”

[15] The Applicants point out that s. 487.014(2)(a) of the Criminal Code requires reasonable grounds to believe that an offence has been committed. The absence of reasonable grounds results in a lack of jurisdiction to order the production of documents.

[16] In relation to the Dominion Insurance Production Order of May 8, 2023, the affiant was Det. Stephen Love. He swore that he had reasonable grounds to believe that offences had been committed in contravention of ss. 217.1, 220 and 221 of the Criminal Code. The Applicants argue that his reliance on the affidavit of Carissa Johnston for grounds, as presented in the Ministry of Labour affidavit, results in a production order that lacks the requisite reasonable grounds to afford jurisdiction for ordering the production of documents.

[17] The OPS searched three locations and seized documents and electronic devices while executing the July 2023 search warrants. The warrants were authorized by Justice Robert W. Wadden and Justice W.V. Clifford. They were executed on July 26, 2023, by the OPS. The locations searched were:

(a) 310-84 Hines Road, Ottawa (Eastway office)
(b) 100 Broughton Street, Ottawa (residence of the Applicant, Neil Greene)
(c) 2021 Ford F-150, Ontario Licence BP33182 (personal vehicle of the Applicant, Neil Greene)

[18] A common affidavit was filed for all three of these s. 487 warrants. The affiant was Det. Carissa Johnston. She swore that there were reasonable grounds to believe that offences had been committed in contravention of ss. 217.1, 220 and 221 of the Criminal Code.

[19] The affiant relied exclusively on the fruits of the production order: one that resulted in the seizure of the Ministry of Labour investigative file, and another that resulted in the seizure of items from the insurance company.

[20] The warrant authorized in July for the Eastway office permitted the seizure of electronic devices only. However, during the search of 84 Hines Road, OPS officers seized 26 boxes of documents. The police believed that the search warrant’s Appendix B, which listed items to be seized, included business record documents in paper form. It did not. In addition to the 26 boxes of documents, some loose papers were also seized. The police then applied ex parte for a warrant to seize the documents from themselves. The affiant for the search warrant was Sgt. Michael Cathcart. In his affidavit, he conceded that the 26 boxes had been unlawfully seized. As evidence that criminal offences had been committed, he relied on Det. Johnston’s affidavit used for the three July search warrants.

[21] The Applicants argue that the warrant authorizing the police to seize from themselves also did not disclose reasonable grounds to believe that offences were committed and that since the 26 boxes were illegally obtained, they should not have been relied on to seek the further warrant. Counsel for Eastway and Mr. Greene asserted solicitor-client privilege over all devices and materials seized. The OPS halted examination of all the seized materials.

[22] The parties have entered into an agreement appointing a forensic computer examiner and agreeing upon a protocol governing the resolution of asserted privilege in the data from the seized devices.

[23] In accordance with the agreement, the computer examiner made working copies of the data contained on the seized devices. Subsequently on March 22, 2024, all the seized devices were returned to the Applicant.

[24] The computer examiner met with counsel to receive key words to search the devices and separate material into “Potentially Privileged” and “Not Potentially Privileged”. On May 8, 2024, the computer examiner completed this process and made the material available for review by the Applicants’ counsel. The “Not Potentially Privileged” material was not provided to the OPS at that time. The OPS’s counsel took the position that not providing the “Not Potentially Privileged” data in a timely manner breached the January 18, 2024, examiner agreement.

[25] Counsel for the parties had lengthy discussions concerning resolution of the privilege claims related to the documents in the 26 boxes. However, they did not reach an agreement.

[26] On May 21, 2024, the Applicants filed their original Notice of Application for certiorari and Charter relief, seeking to quash the OPS warrants, return the seized property and prohibiting any use of the fruits of the search by the OPS.

[27] On May 27, 2024, the OPS responded with a Notice of Application seeking:

a) To have the Applicants’ May 21 application summarily dismissed as manifestly frivolous;
b) An order directing Applicants’ counsel to fulfil the January 18, 2024, forensic examiner agreement by providing the “Not Potentially Privileged” data; and
c) Appointing an independent referee (Mr. Scott Fenton) to execute the terms of a proposed Lavallee protocol in respect of the documents contained in the 26 boxes.

[28] Subsequently, counsel for the Applicants provided the OPS with the “Not Potentially Privileged” data. That material was provided to the OPS on June 22, 2024, thereby disposing of one of the grounds for the OPS’s application.

[29] On November 8, 2024, my colleague, Justice Bergeron, dismissed the OPS’s application for summary dismissal. Mr. Fenton was appointed as referee to implement the Lavallee protocol for review of the documents contained in the 26 boxes.

[30] One of the issues stymying the review process is that several boxes contain damaged documents. Upon review, about seven boxes contain severely damaged material, making it practically impossible for Mr. Fenton’s office to scan the material. Approximately eight boxes include documents that are dirty or damaged. The remaining nine boxes that are not damaged, along with the sealed packet, can be scanned. Mr. Fenton’s office has advised that it will commence the scanning and imaging process and provide weekly updates, including updating counsel for the Applicants.

[31] Mr. Fenton’s office indicated it will seek an amendment to Justice Bergeron’s order to address:

1. The scanning of the damaged documents;
2. Whether documents outside the relevant date range require scanning; and
3. How to proceed with the undated documents.

Legal Analysis

[32] The Superior Court has the jurisdiction to entertain an application for certiorari prior to charges being laid: R. v. Zevallos.

[33] Certiorari prior to the laying of criminal charges should be granted where it is in the interests of justice to do so: Vijaya v. H.M.Q., 2014 ONSC 1653, para 21.

[34] In reviewing the relevant case law, this type of pre-charge relief is sometimes granted where more than declaratory relief is sought.

[35] For example, in R. v. Sanchez, the Applicants sought the return of property (not narcotics) through an application before Justice Hill to quash two search warrants on jurisdictional grounds and on the basis that the warrants authorized an unreasonable search and seizure, contrary to s. 8 of the Charter.

[36] One of the warrants was issued under the Criminal Code and the other under the Narcotic Control Act, RSC 1985, c N-1. When the Criminal Code warrant was executed, a considerable number of items were seized beyond those authorized on the face of the warrant itself. The Applicants were charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of the commission of an indictable offence.

[37] The Applicants sought to quash the search warrants on several grounds, including that the Criminal Code search warrant authorized an unreasonable search and seizure contrary to s. 8 of the Charter.

[38] As a preliminary issue, the Crown submitted that the motions judge should not entertain applications for certiorari, but instead should prefer the trial court as forum for addressing the Charter issues related to the admissibility of the evidence in a pretrial motion.

[39] In Sanchez, Justice Hill reviewed the relevant authorities: Zevallos; R. v. Marchese, 1989 CarswellOnt 1754 (Sup. Ct.); and Prime Realty Ltd. v. British Columbia (Superintendent of Real Estate). Hill J. determined that review by certiorari was warranted, having regard to the following factors:

1. The Applicants were not advancing, as their exclusive objective, a finding that the seized materials are inadmissible in the outstanding proceedings.
2. Consequential relief of a return of the things as described in the warrant, and seized pursuant thereto, is possible in the sense that the items are not unlawful per se to possess.
3. The trial of the outstanding charges is not imminent.
4. There is an important declaratory entitlement where certiorari operates to quash a search warrant: see R. v. Goodbaum, per Brooke J.A, at p. 480.

[40] In Vijaya v. H.M.Q., 2014 ONSC 1653, the Applicant sought a determination of the constitutional validity of a search prior to charges being laid. The Applicant was a lawyer. His wife voluntarily turned over his computers to the police while he was away on holiday. There were images of child pornography on the computers. Police sought a warrant to examine the computers. Police were aware of their obligation to protect the devices because of the possibility that there may be solicitor-client material on them. Once the search warrants were granted, the police seized and sealed the devices so that they could not be examined until further order of the court. Approximately a month later, on December 10, 2013, the respondent brought an application to appoint an independent referee and independent forensic computer examiner to examine the devices in accordance with the principles set out in Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209. That application was held in abeyance while the application for certiorari was dealt with. He argued that the decision in Lavallee makes it clear that maximum protection is to be given to solicitor-client privilege and, therefore, there should be no examination of the devices undertaken pursuant to the principles in Lavallee until it is first determined that the devices were lawfully seized.

[41] At para. 21 of Vijaya, Nordheimer J. (as he then was) wrote:

[W]hile a challenge to the validity of a search may be raised at trial, it is not restricted to only that forum. Undoubtedly, in the normal course if a challenge to a search is brought at a point before the trial, it is likely to be deferred to the trial judge but it does not have to be. Special circumstances may arise where the interests of justice will dictate that the challenge should not have to wait until an accused person arrives for his/her trial.

[42] Nordheimer J. continues, stating at para. 22:

The question here becomes whether the situation that presents itself in this case is one of those special circumstances. I believe that it is. As I have already noted, the situation here is unusual. It is one that is unlikely to arise frequently. It is a situation where, because of the Lavallee principles, the police have not had access to the devices in order to determine if there is material on those devices that would justify charges being laid. As a consequence, we are at a stage where it is unknown whether charges will ever be laid and consequently, it is unknown whether there will ever be a trial judge to determine the validity of the search.

[43] In Vijaya, Nordheimer J. concluded that the application was governed by the principles in R. v. Garofoli, aff’d R. v. Pires; R. v. Lising, 2005 SCC 66. It was concluded that the Applicant was entitled to disclosure of material referred to or summarized by the affiant in the Information to Obtain (ITO) despite the fact that no charges had yet been laid. The court determined it to be premature to conclude whether leave to cross-examination should be granted until the required disclosure had been made.

[44] In this case, what is being sought is not consequential relief of a return of items, but declaratory relief in relation to the impugned search warrants. In cases where this remedy alone is sought, the relief sought is generally left to the trial judge on a Charter application.

[45] As Morden J.A. (as he then was) wrote in Zevallos (1987), at p. 81:

The Appellant’s purpose, and his only purpose, in bringing this pre-trial application, is ultimately, to obtain a ruling that by reason of ss.8 and 24(2) of the Charter the evidence of the seizure of the cocaine is inadmissible at his trial. If the only issue sought to be resolved is one of admissibility at trial of the evidence of seizure, I think that it is preferable that the trial judge decide all aspects of the question of admissibility rather than to have them decided by different judges, one before the trial and the other during it.

[46] In this case, the Applicants do not seek the return of property, nor the exclusion of evidence. I am appreciative of the fact that the Applicants have had this matter hanging like the sword of Damocles over their heads for several years, and as of yet, no date has been forecast as to when charges will be laid. The claim of reputational damage, based on the issuance and execution of search warrants and production orders, can trigger an order in the nature of certiorari seeking the quashing of search warrants and a declaration that the Applicants’ s. 8 Charter rights have been infringed, in the hope that this will vindicate its reputation and prevent further financial loss: see R. v. 1758691 Ontario Inc. (“ATV Farms”), 2019 ONSC 6951, para 4; R. v. 1758691 Ontario Inc. (“ATV Farms”), 2019 ONSC 2933, para 30.

[47] It is beyond reasonable dispute that the targets of criminal investigative searches often endure “stigmatization to name and reputation”: see Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, at p. 187. There is also an important declaratory entitlement where certiorari operates to quash a search warrant: see Sanchez, at p. 363. As Dawe J. (as he then was) wrote in ATV Farms 2, the use of certiorari to vindicate a reputational interest will be potentially justified in at least some situations, for instance where (i) no criminal trial is imminent, (ii) where the application cannot properly be characterized as an attempt to interfere with an ongoing investigation or to prematurely litigate the admissibility of the seized evidence; and (iii) when the applicant can reasonably claim that the harm to its reputation has caused, or is likely to cause, some tangible material harm: at para. 23. The Applicants do not have an imminent criminal trial, the application is not an attempt to interfere with an ongoing investigation or a premature attempt to litigate the admissibility of seized evidence.

[48] I also agree with the analysis of Dawe J., who dismissed the floodgates argument made by the Crown in that case, and with his reasoning that suing for damages at a later date does not render certiorari review inappropriate, given the difficulties of establishing reputational harm resulting from an unreasonable search in terms of compensable damages. As Dawe J., pointed out: “[i]n at least some situations the interests of justice will favour allowing the Applicant to seek anticipatory relief rather than having to absorb the losses and try to obtain compensation later”: ATV Farms 2, at para. 24.

[49] Here, the Applicants do not seek the return of documents, thus this application cannot be viewed as requiring the court to make an order that would impede the ongoing criminal investigation by depriving it of the fruits of its search. I would not have to comment directly or inferentially on the separate issue of whether any of the seized evidence should be excluded from evidence at a later trial. What is sought is only a declaration as to whether the Applicants’ s. 8 Charter rights have been breached. There is also merit in the suggestion that it is better that the OPS’s investigators be provided with a judicial declaration as to the lawfulness of their conduct sooner as opposed to later so that the case can be appraised in light of a declaration one way or another.

[50] I have also considered the fact that the Applicants have admitted liability in a non-criminal context by entering pleas of guilt to a mere provincial regulatory offence. That does not ameliorate the stigma associated with being the target of a criminal investigation. The moral blameworthiness associated with a pending criminal charge, which justifies the stigma and sentence of a criminal conviction, distinguishes the prejudice associated with a plea to a mere provincial regulatory offence from a criminal investigation. If anything, being the target of a criminal investigation, after pleading guilty to a mere regulatory offence exacerbates the concerns for reputational integrity.

[51] However, this case is distinguishable from the ATV Farms decisions, in that there is an insufficient evidentiary basis to support the conclusion that the reputational integrity of Eastway has been damaged with its customer base. I have no affidavit either from Mr. Greene or from Eastway to that effect. As a result, there is an insufficient evidentiary basis to justify making the declaration sought. I accept Mr. Ertel’s submissions to that effect as far as they went, but there were no specifics provided as to how, in concrete terms, the criminal investigation has damaged the business’s reputation, or impacted the day-to-day business transactions and profits.

[52] I note, as well, that the Lavallee process in this case is already well underway.

[53] As a result, I have declined to exercise my discretion in favour of allowing the application to proceed at this time. I find at this point that the Charter issues are best left to be determined by the trial judge. The Application is therefore dismissed without prejudice, and the dates set to hear this matter are vacated. However, should charges not be laid within a reasonable period of time, bearing in mind that this is a complex investigation, the Application may be renewed in front of me, setting out any evidence of reputational harm to Eastway upon which the Applicants rely.

[54] If there are issues with respect to the scanning of the documents, or other pretrial orders which are required to expedite matters, I would be happy to assist the parties.

Anne London-Weinstein
Released: March 19, 2025