Ontario (Minister of Labour) v. Modern Niagara Toronto Inc., 2008 ONCA 590

• Judge: Rosenberg, Armstrong and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 09, 2008
• Jurisdiction: Ontario
• Citations: 2008 ONCA 590;(2008), 240 O.A.C. 278 (CA)

Ont. v. Modern Niagara Toronto Inc. (2008), 240 O.A.C. 278 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. AU.030

Her Majesty the Queen in Right of Ontario (Ministry of Labour) (respondent) v. Modern Niagara Toronto Inc. (formerly known as Niagara Mechanical Contractors Limited) (appellant) and Mechanical Contractors Association of Ontario Limited (intervenor)

(C46405; 2008 ONCA 590)

Indexed As: Ontario (Minister of Labour) v. Modern Niagara Toronto Inc.

Ontario Court of Appeal

Rosenberg, Armstrong and Watt, JJ.A.

August 18, 2008.

Summary:

Modern Niagara Toronto Inc. (the defendant) was acquitted by a Justice of the Peace on four charges under the Occupational Health and Safety Act (Ont.). The Justice of the Peace found that the actus reus of two of the offences was not made out and that the defendant had made out the due diligence or reasonable mistake of fact defence to the other two offences. The Crown appealed.

The Provincial Offences Appeal Court allowed the appeal. The court found the defendant guilty on three of the counts and imposed a fine of $135,000. The defendant sought leave to appeal.

The Ontario Court of Appeal, per MacPherson, J.A., in a decision not reported in this series of reports, granted leave to appeal.

The Ontario Court of Appeal allowed the appeal, set aside the conviction on count three and the findings of guilt on counts one and four and remitted the matter to the Provincial Offences Appeal Court for a rehearing of the Crown appeal.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - One of the defendant's workers was injured on the job - A Justice of the Peace acquitted the defendant of four charges under the Occupational Health and Safety Act (Ont.), finding that the actus reus of two of the offences was not made out and that the defendant had made out the due diligence or reasonable mistake of fact defence to the other two offences - The Crown appealed - The Provincial Offences Appeal Court found the defendant guilty on three counts and imposed a $135,000 fine - On the appeal, the Crown was permitted to rely on a new theory of liability to overturn the acquittals - Further, the appeal judge stated that she was raising two new issues that were dispositive of the appeal in the Crown's favour - The defendant first learned of these new issues when the appeal judge released her reasons - The defendant appealed - The Ontario Court of Appeal held that the defendant was denied a fair hearing in the Provincial Offences Appeal Court - The court remitted the matter to the Provincial Offences Appeal Court for a new hearing before a different judge.

Trade Regulation - Topic 7931

Industrial safety - Enforcement - Appeals - [See Civil Rights - Topic 3126 ].

Trials - Topic 1198

Summary convictions - Appeals - Restrictions on argument on appeal - [See Civil Rights - Topic 3126 ].

Cases Noticed:

R. v. Elms (M.) (2006), 216 O.A.C. 112; 217 C.C.C. (3d) 217 (C.A.), appld. [para. 23].

R. v. Wexler (1939), 72 C.C.C. 1 (S.C.C.), refd to. [para. 24].

Ontario v. London Excavators & Trucking Ltd. (1998), 110 O.A.C. 94; 125 C.C.C.(3d) 83 (C.A.), refd to. [para. 35].

Counsel:

Peter W. Kryworuk and Andrew C. Murray, for the appellant;

Brian A. Blumenthal, for the respondent;

Norman A. Keith and Goldie G. Bassi, for the intervenor, Mechanical Contractors Association of Ontario Limited.

This appeal was heard on June 9, 2008, by Rosenberg, Armstrong and Watt, JJ.A., of the Ontario Court of Appeal. The court delivered the following reasons for decision on August 18, 2008.