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“But They Charged the Wrong Company!” Sorry, You Will Still Have to Go Through a Trial

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In a case involving an environmental prosecution, an Ontario justice of the peace has concluded that a “wrong company has been charged” argument should be dealt with at a full trial, and not on a pre-trial motion.

Stelco Inc., now U.S. Steel Canada Inc., was charged under the Ontario Environmental Protection Act. It took the position that it was wrongly charged because prior to the environmental incident, the business and premises in question had been transferred from Stelco to a separate company called Hamilton Steel GP. Inc. through a plan of arrangement as part of Stelco’s restructuring.

The justice of the peace decided that there was no pre-trial procedure available to deal with the question of whether the wrong defendant had been charged. Also, deciding that issue on a motion before trial would add complexity and length to regulatory proceedings (such as environmental and OHSA charges). It would also interfere with the prosecutor’s authority to decide whether to withdraw charges or proceed to trial. As such, Stelco’s motion to dismiss the charges was rejected.

The justice of the peace also decided that even if a procedure was available to decide the issue before trial, the complexity of the facts of this case required that a full trial be held – the issue could not be fully understood and decided on a pre-trial motion.

In effect, the result of this decision is that in the face of a “wrong employer” argument involving complex, disputed evidence, the prosecutor retained the power to withdraw the charges or proceed to trial. Prosecutors will consider withdrawing charges if there is no reasonable prospect of a conviction or if it is no longer in the public interest to proceed with the charges.

If this decision is followed in the future, companies charged under the OHSA who believe that “they charged the wrong company” will need to focus their energies on convincing the prosecutor to withdraw the charges. One hopes, however, that in clear cases of “the wrong company” being charged, courts will still consider whether to dismiss the charges before trial, saving the cost of a full trial.

R. v. Stelco Inc., 2011 ONCJ 471 (CanLII)