Safety Charges Reinstated after Errors Sent Case “Off the Rails”

An Ontario Superior Court judge has reinstated an Occupational Health and Safety Act prosecution that “went off the rails” because of errors by a Justice of the Peace and Ministry of Labour inspector in the initiation of the prosecution. The charges resulted from the collapse, across Richmond Street East in downtown Toronto, of a large crane being used to construct a high-rise condominium complex.  No one was injured.

The case could be said to have involved a comedy of errors.  The Superior Court judge described the errors as follows:

“On March 18, 2011, the inspector attended before a Justice of the Peace and presented her with an Information [the document that contains the safety charges] and three summonses directed to the respondents. It is at this point that the process ‘went off the rails’.  It does not appear that either the Justice of the Peace or the inspector were familiar with the formalities associated with the swearing of an Information. As the transcript of the proceedings show, the inspector swore the Information before the Justice of the Peace. However, the Justice of the Peace initially failed to sign the Information confirming that the Information had in fact been sworn. When the inspector pointed this out, the Justice of the Peace apologized and then signed the Information. Unfortunately, she signed the Information on the line where the informant is supposed to sign. Also, while the Justice of the Peace included the day and month on the Information, she did not include the year. In addition to those problems, the inspector did not sign the Information nor did he place his name on the front of the Information where it ought to appear.”

Another Justice of the Peace later threw out the charges because of the problems described above.  The Ministry of Labour then applied the Superior Court to have the charges reinstated.

Mr. Justice Nordheimer reinstated the charges, stating that:

“In my view, a substantial wrong will occur if the decision of the Justice of the Peace is allowed to stand. The consequences of a very serious work-related incident will be left unaddressed. Violations of OHSA, if they occurred, will not be determined and the persons responsible for any such violations will not be held to account. The public is entitled to have an incident of this magnitude properly investigated and not deflected by technical irregularities. That said, that conclusion should not be taken as excusing the inattentiveness surrounding the issuance of the Information in this case or as suggesting that it is being tolerated or overlooked. Rather, the conclusion is a recognition of the simple fact that treating the Information as a nullity is not a measured response to that inattentiveness.”

This decision illustrates that technical issues with charges will not always result in the charges being dismissed or “stayed”.  The courts recognize the importance of having OHSA charges adjudicated on their merits.

Ontario Ministry of Labour v. Rumble Foundations (Ontario) Ltd.:

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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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