Even though the case took more than two years to get to trial,
an Ontario court has refused to halt a prosecution of a company
under the Occupational Health and Safety Act.
Charges were laid against a construction company in January,
2014 after a worker fell nine feet when a ladder slipped. The
charges alleged that the company failed to ensure that the ladder
was tied down or otherwise secured to prevent slipping.
There were nine court appearances, and a trial was scheduled for
January, 2016. The company, relying on the Canadian Charter of
Rights and Freedoms, asked the court to order a stay (similar to a
dismissal) of the OHSA charges due to the delay in getting to
The court stated that the "defence was content with the
pace of proceedings" and that the company had not provided any
evidence that it had suffered "irremediable prejudice"
because of the delay. For instance, there was no evidence that any
witness's recollection had been significantly impaired.
Further, late disclosure of one document had not caused prejudice
because the document (disclosed one month before trial) was
"of marginal value" as it repeated the Ministry of Labour
investigator's conclusions. Further, both the defence and the
Crown had been responsible for some of the delay in getting to
The court stated that, "A stay is a remedy of last resort.
There is a societal interest in having the charges heard on the
merits." The charges should proceed to trial.
The decision was handed down before the Supreme Court of Canada
released its recent, ground-breaking decision on delay in R. v. Jordan, 2016 SCC 27 (CanLII).
It remains to be seen how the new Jordan framework for
dealing with delay will be applied in OHSA cases involving
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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