An Ontario appeal judge has upheld the dismissal of Occupational Health and Safety Act charges against employees due to delay.

The charges resulted from the death of a mining employee from cyanide intoxication by way of skin absorption. The company itself had pleaded guilty to criminal negligence charges, after which all fifteen OHSA charges against the company were withdrawn. Criminal charges against one of the employees were withdrawn at the same time.

The total delay in this case, from the laying of the charges until the last day scheduled for trial, was 21 months, which exceeded the 18-month presumptive delay ceiling set out by the Supreme Court of Canada in the Jordan case.

The trial judge found that the Ministry of Labour prosecutor had breached his duty to develop and follow a concrete plan to minimize the delay due to the complexity of the case. Also, it was not reasonable for the prosecutor to fail to seek trial dates until 5 1/2 months before the 18-month "presumptive ceiling" for delay. Further there was no effort by the prosecutor until late in the case, to seek to narrow the issues or shorten the trial by seeking admissions, attempting to negotiate an agreed statement of facts, or seeking agreement regarding documents, despite being invited by the defence to do so. The trial judge therefore concluded that the prosecutor's trial management fell well below the standard set out in the Jordan, and the appeal judge upheld that finding.

In the result, the appeal judge upheld the trial judge's decision to stay the charges against the employees for delay, bringing the prosecution to an end – despite the fact that the charges were particularly serious as they resulted from a fatality.

R. v. Nugent, Guillemette and Buckingham, 2018 ONSC 3546 (CanLII)

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