Health & Safety

EP Update - April 22, 2002

Recently, our Management Labour and Employment Law Department successfully argued that charges should be stayed against a client for alleged infractions of the Occupational Health & Safety Act (OHSA). The stay was subsequently upheld, on appeal, by the Ontario Court of Justice. The issue was whether the employer's Charter right to be tried within a reasonable time had been violated and whether there had been an abuse of process.

The employer was charged by the Ministry of Labour (MOL) following a work refusal. The charges were laid close to the end of the one year limitation period under the OHSA. This was not the first time the MOL and the Crown had taken so long to lay charges against the employer (there had been previous workplace incidents as well). The lower Court found that there had been a pattern of delay on the part of the MOL and the Crown which violated the employer's rights. In the case before the Court, the investigation had essentially been completed by April 2000 but charges were not laid until February 28, 2001, more than ten months later.

It was successfully argued that pre-charge delay should be a consideration when judging the reasonableness of the conduct of the MOL and the Crown. The Court accepted that where the delay cannot be attributed to discovery and investigation, the Crown has an obligation to explain the delay and cannot simply rely on the one year limitation period. The Judge on appeal concluded that the lower Court had made the right decision and had not erred in staying the charges. The MOL is seeking leave to appeal the decision to the Court of Appeal.

The Courts have shown a willingness to protect employers' rights where quasi?criminal charges of this type have been laid. The cases indicate that Ministry inspectors must exercise reasonable diligence and ensure that persons who may be charged are accorded due process. For instance, the cases indicate that investigators must obtain judicial authorization to enter premises, conduct interviews or demand documents when they have reasonable and probable grounds to believe an offence has been committed.

In the event of a workplace accident, it is important that employers and supervisors understand that they have a legal obligation to cooperate and not interfere with Ministry inspectors. However, employers and supervisors clearly have rights which the Courts have recognized as deserving of protection. Prudent employers should make the effort to understand their rights in advance to ensure that they are protected during regulatory investigations.