OHSA Defendants May Ask Prosecutor for MOL Inspector’s Criminal Record

Companies and individuals charged under the Ontario Occupational Health and Safety Act may ask the prosecutor to provide the Ministry of Labour inspector’s criminal record, an Ontario court has ruled.

And the prosecutor, when faced with such a request, must carefully consider it.

The case arose out of a grievance filed by the Ontario Public Service Employees’ Union after a Ministry of Labour prosecutor provided an inspector’s criminal record to a defendant facing Occupational Health and Safety Act charges.  (The Supreme Court of Canada held in 2009 that criminal prosecutors were required to disclose criminal records of police investigators if the record could reasonably impact on the criminal proceedings).  The Ministry of Labour inspector had previously been convicted of assault.  The union filed a policy grievance against the practice of providing inspectors’ criminal records to defence counsel, and argued that defence counsel should be required to bring a special motion to the court for an order requiring the police to produce the criminal record.

The Ontario Divisional Court, on appeal from the Grievance Settlement Board, disagreed with the union.  The court stated that a Ministry of Labour inspector, like a police officer, has the role of “investigator, accuser and witness” and that “there is no reason to think an inspector’s criminal record will have less bearing on the right to make full answer and defence in a regulatory proceeding [such as OHSA charges] than a police officer’s record in a criminal prosecution”.  As such, defence counsel was entitled to request the inspector’s criminal record, and the prosecutor was required to consider the request.  However, the court ordered prosecutors to follow a process including notice to the inspector whose criminal record has been requested.

Ontario v. O.P.S.E.U., 2012 CarswellOnt 6293 (Div. Ct.)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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