Ontario (Minister of Labour) v. Lee Valley Tools Ltd., (2009) 264 O.A.C. 213 (CA)

• Judge: Rosenberg, Simmons and Lang, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 15, 2009
• Jurisdiction: Ontario
• Citations: (2009), 264 O.A.C. 213 (CA);2009 ONCA 387

Ont. v. Lee Valley Tools Ltd. (2009), 264 O.A.C. 213 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.007

Her Majesty the Queen in Right of Ontario (Ministry of Labour) (respondent) v. Lee Valley Tools Ltd. (appellant)

(C49423; 2009 ONCA 387)

Indexed As: Ontario (Minister of Labour) v. Lee Valley Tools Ltd.

Ontario Court of Appeal

Rosenberg, Simmons and Lang, JJ.A.

May 8, 2009.

Summary:

Charges were brought against Lee Valley Tools Ltd. (Lee Valley) under the Occupational Health and Safety Act. The trial judge held that Lee Valley had established prejudice that compromised its right to a fair trial under s. 11(d) of the Charter, meriting a stay of the charges. The prejudice was said to arise because a potential defence witness (Kochylema) was no longer available to give evidence by the time the charges were laid. The Minister of Labour appealed. A provincial offences appeal court judge lifted the stay and remitted the charges to the trial judge who had concluded that, but for the stay, she would have registered convictions against Lee Valley. Lee Valley appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - Charges were brought against Lee Valley Tools Ltd. under the Occupational Health and Safety Act, after a Lee Valley employee injured his hand using a table saw which had no operating guard in use - On the day of the accident, and for approximately two weeks before, the injured employee's primary supervisor (Kochylema), was on holiday - On the day of the accident, the employee's immediate supervisor was Johnston, who had himself been trained by Kochylema - After the accident, Lee Valley was ordered to submit a "detailed investigation report" to the Ministry inspector - As part of his own investigation, the Ministry inspector obtained a written statement from Kochylema - It was not helpful to Lee Valley - By the time the charges were laid, Kochylema had terminal cancer and Lee Valley did not have an opportunity to speak with Kochylema about its defence - The trial judge held that Lee Valley had established prejudice that compromised its right to a fair trial under s. 11(d) of the Charter, meriting a stay of the charges, because a potential defence witness (Kochylema) was no longer available to give evidence by the time the charges were laid - The Minister of Labour appealed - A provincial offences appeal court judge lifted the stay and remitted the charges to the trial judge who had concluded that, but for the stay, she would have registered convictions - The Ontario Court of Appeal held that the appeal court judge made no error in concluding that Lee Valley had not established that: the allegedly lost evidence would have assisted its defence in a material way (causing an unfair trial), or the absence of the evidence irreparably prejudiced it (justifying a stay of the charges).

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3157 ].

Cases Noticed:

R. v. Gatley (D.R.) (No. 2) (1992), 15 B.C.A.C. 162; 27 W.A.C. 162; 74 C.C.C.(3d) 468 (C.A.), refd to. [para. 13].

R. v. D.A. (1992), 57 O.A.C. 295; 10 O.R.(3d) 241 (C.A.), affd. [1993] 2 S.C.R. 441; 153 N.R. 233; 63 O.A.C. 98, refd to. [para. 13].

R. v. J.G.B. (2001), 139 O.A.C. 341; 52 O.R.(3d) 257 (C.A.), refd to. [para. 17].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 23].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 24].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 25].

R. v. Knox (K.L.) (2006), 211 O.A.C. 164; 80 O.R.(3d) 515 (C.A.), refd to. [para. 27].

Counsel:

Stephen Bird, for the appellant;

David McCaskill, for the respondent.

This appeal was heard on April 15, 2009, by Rosenberg, Simmons and Lang, JJ.A., of the Ontario Court of Appeal. Lang, J.A., delivered the following decision for the court on May 8, 2009.