Wes Wilson

The Court of Appeal for Ontario granted leave to appeal on three issues arising from the acquittal of Luis Benevides, a worker charged under the Occupational Health and Safety Act after a workplace accident.

The case addresses the proper application of the directed verdict test, the determination of worker responsibility under the Act, and the use of private business contracts in defining statutory obligations.

The court declined to grant leave on the issue of whether the trial justice erred by considering due diligence and foreseeability at the directed verdict stage.

The Crown sought leave to appeal to the Court of Appeal for Ontario from a judgment of the Ontario Court of Justice concerning findings on due diligence and penalty reduction in regulatory offence charges under the Occupational Health and Safety Act.

The motion for leave was dismissed as the proposed grounds of appeal did not meet the high bar under s. 131 of the Provincial Offences Act.

The court found that the alleged errors involved the misapplication of well-established legal principles rather than issues requiring the Court of Appeal's guidance on statutory interpretation or general legal principles.

The appellant employer was convicted on appeal of an offence under the Occupational Health and Safety Act following a workplace fatality.

Before sentencing, the appellant brought an application for a stay of proceedings under s. 11(b) of the Charter, which the appeal judge summarily dismissed.

The Court of Appeal held that while the appeal judge had jurisdiction to hear the Charter application, he did not err in exercising his discretion to summarily dismiss it, as constitutional issues should only be raised for the first time on appeal in exceptional circumstances where there is no prejudice to the parties.

Vixman Construction Ltd. was convicted of two regulatory offences under the Occupational Health and Safety Act (OHSA) following the death of worker William Dean Maguire, who fell approximately 3.6 metres from a work surface at Billy Bishop Toronto Island Airport on March 27, 2018.

The Crown alleged that the company failed to ensure proper fall arrest system configuration and failed to arrange the fall arrest system so that a worker could not hit the ground or an object below the work.

The court imposed a $125,000 fine plus a 25% Victim Fine Surcharge and an 18-month probation order with conditions requiring the company to publish safety information, produce an educational video, and implement enhanced fall protection procedures.

A worker employed by Vixman Construction Ltd. was fatally injured when he fell approximately 3.6 metres from a work surface at Billy Bishop Toronto Island Airport on March 27, 2018.

The Crown prosecuted Vixman under the Occupational Health and Safety Act for failing to ensure that prescribed fall arrest measures and procedures were carried out in the workplace.

Specifically, the Crown alleged violations of Ontario Regulation 213/91 regarding the improper anchoring of a self-retracting lifeline (SRL) and the failure to ensure that the fall arrest system was arranged so that a worker could not hit the ground or an object below the work surface.

The defendant argued a due diligence defence, claiming it had implemented comprehensive safety training, policies, and procedures.

The court found that while Vixman maintained a robust safety program, it failed to enforce critical specific requirements at the job site, including the failure to calculate fall clearances prior to work commencement and the failure to ensure the use of a safe anchoring method.

The court convicted Vixman on both counts, finding that the defendant did not discharge its burden of proving that every reasonable precaution was taken.

The Crown appealed the acquittal of Quinton Steel on charges under the Occupational Health and Safety Act (OHSA) arising from the death of an employee who fell from a temporary welding platform.

The trial justice and summary conviction appeal judge found that the general duty clause in section 25(2)(h) of the OHSA could not be used to impose requirements beyond those specifically prescribed in the regulations.

The Court of Appeal allowed the appeal, holding that section 25(2)(h) establishes an independent duty that is not limited by the regulations, and that the trial justice erred by failing to determine whether installing guardrails was a reasonable precaution in the circumstances.

The appellants appealed their convictions and sentences for multiple regulatory offences under the Environmental Protection Act and the Occupational Health and Safety Act following a massive propane explosion at their facility that resulted in a worker's death and widespread environmental contamination.

The appellants argued the trial judge made numerous factual and legal errors, including rejecting their defence of officially induced error and finding a lack of due diligence.

The Superior Court of Justice dismissed the conviction appeals, finding no palpable and overriding errors in the trial judge's assessment of the evidence or application of strict liability principles.

The court also dismissed the sentence appeals, upholding over $5 million in fines due to the unprecedented magnitude of the damage and the appellants' reckless conduct.

The defendant employer was charged with failing to ensure that measures and procedures prescribed by Ontario Regulation 213/91 were carried out in a workplace, contrary to section 25(1)(c) of the Occupational Health and Safety Act.

A worker was fatally injured when a curb machine tipped over during unloading from a float trailer.

The Crown proved the actus reus beyond a reasonable doubt, establishing that the worker was endangered by the movement of the equipment.

However, the defendant successfully established the defence of due diligence on a balance of probabilities, demonstrating that it took all reasonable steps to prevent the incident.

The court found that the worker was highly experienced, had successfully unloaded the same machine 27 times previously, and deviated from established safety procedures on the day of the incident by failing to use the wooden block ramp and leaving the machine's controls on automatic rather than manual.

The charge was dismissed.

The defendant employer was charged with failing to ensure compliance with section 37(1) of Ontario Regulation 213/91, which requires that material or equipment at a construction project be stored and moved in a manner that does not endanger a worker.

A transport driver employed by the defendant was fatally crushed when a curb machine tipped over while being unloaded from a float trailer.

The defendant brought a motion for non-suit, arguing that the prosecution failed to prove the actus reus beyond a reasonable doubt because the cause of the accident was not established.

The court dismissed the motion, holding that the prosecution need not prove how the accident occurred, only that the prohibited act (moving equipment in a manner that endangered a worker) took place.

The fact that a worker was fatally injured constituted prima facie evidence of endangerment.

A trial concerning occupational health and safety violations arising from a serious mining accident at the Cochenour Mine in Red Lake, Ontario on August 4, 2013, where a worker suffered severe injuries when rocks fell onto a Mechanized Raise Climber.

The Crown charged the employer and two supervisors with multiple violations under the Occupational Health and Safety Act and Regulation 854.

The court convicted the corporate defendant on counts relating to failure to provide training, supervision, and job task observations, and convicted the supervisors on counts relating to failure to ensure use of safety equipment and supervision.

The court dismissed charges relating to geology, loading of drill holes with ANFO, and notification of appropriate officials.

The offender was sentenced after being convicted of multiple firearms and drug-related offences, including possession of a prohibited loaded handgun, possession of marijuana for the purpose of trafficking, and possession of proceeds of crime.

Police discovered the firearm, ammunition, marijuana, trafficking paraphernalia, and nearly $30,000 in cash during the execution of a search warrant at the offender’s residence.

The court weighed significant aggravating factors arising from the dangerous combination of firearms and drug trafficking against mitigating factors including the offender’s lengthy period without criminal involvement, stable employment, and prospects for rehabilitation.

Emphasizing denunciation and deterrence while applying the principle that a first penitentiary sentence should be set at the lowest appropriate level, the court imposed a global custodial sentence.

Consecutive terms were imposed for the drug trafficking and proceeds offences.

The respondent parents brought a motion under Rule 20(5) of the Family Law Rules seeking disclosure of the names and addresses of all private investigators hired by the Children's Services society, along with copies of all correspondence, retainer agreements, and exchanges between the society and investigators since November 2012.

The parents alleged they had observed unknown persons conducting surveillance of their home and taking photographs.

The society claimed litigation privilege over the surveillance materials.

The court dismissed the motion, finding that while the society has a broad disclosure obligation under Stinchcombe principles, litigation privilege protects work product prepared in contemplation of litigation, including surveillance conducted for litigation purposes that has not been relied upon as evidence.

The Crown prosecuted Vale Canada Ltd. and Keith Birnie following workplace deaths.

Vale Canada Ltd. pleaded guilty to three counts under occupational health and safety legislation.

The court imposed a monetary fine of $350,000 per count for a total of $1,050,000, payable within 60 days, with applicable surcharges.

The Crown withdrew remaining charges against Vale Canada Ltd. and all charges against Keith Birnie due to insufficient evidence of reasonable prospect of conviction and public interest considerations.

The sentencing emphasized workplace safety standards, deterrence, and accountability while acknowledging the tragic loss of life.

The Ministry of Labour appealed a decision staying or dismissing charges against the respondent employer.

The Court of Appeal allowed the appeal, finding no evidence of actual, irremediable prejudice to the respondent's ability to make full answer and defence simply because the employees no longer worked for the employer.

The matter was remitted to the trial court for trial.

The Ministry of Labour appealed the acquittal of an employer charged under the Occupational Health and Safety Act after a worker suffered a serious hand injury on a cold-rolling steel mill.

The employer argued it complied with the guarding requirement in section 25 of the Industrial Establishments Regulations by using a push bar and an operating control, and that the worker's deliberate failure to follow procedures caused the accident.

The Court of Appeal allowed the appeal, holding that the push bar and operating control did not constitute a guard or 'other device' under the Regulation.

The Court further held that employee misconduct is not a defence to the strict liability offence of failing to guard a machine, and the employer failed to establish a due diligence defence.

A conviction was entered.

The respondents brought a motion to quash the Crown's appeal from an order quashing search warrants obtained under the Occupational Health and Safety Act.

The Court of Appeal granted the motion, finding the appeal was moot because the Crown had made a deliberate choice not to execute the impugned warrants to keep the trial process moving.

The court also held that the ancillary costs order could not sustain the moot appeal.

The appeal was quashed in its entirety.

The appellant appealed a conviction under the Occupational Health and Safety Act, arguing that the definition of 'employer' in section 1 of the Act is overbroad.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the definition is not overbroad and declining to revisit the court's previous decision in R. v. Wyssen.

The applicant sought leave to appeal under s. 131 of the Provincial Offences Act following a summary conviction appeal court decision.

The appeal judge had overturned the trial judge's finding that delay caused irremediable prejudice to the applicant's fair trial rights due to missing inspector notes.

The Court of Appeal agreed with the appeal judge that the finding of prejudice was speculative and not linked to the delay.

The motion for leave to appeal was dismissed.

The appellants appealed a decision regarding whether their trial should be heard by a judge rather than a justice of the peace.

The Court of Appeal dismissed the appeal, finding that while the statute recognizes complex cases may be heard by a judge, it does not require it, making the decision a matter of discretion.

The court found no reviewable error in the lower courts' decisions.

The corporate defendant was charged under the Occupational Health and Safety Act following an investigation into asbestos exposure.

The trial judge granted a stay of proceedings, finding that the Crown's unexplained pre-charge delay amounted to an abuse of process, which was upheld on initial appeal.

The Court of Appeal allowed the Crown's appeal, holding that the lower courts erred in inferring prejudice to the corporate accused and improperly placed a burden on the Crown to explain pre-charge delay absent bad faith, effectively creating a judicial limitation period.