Law Times

Law Times • November 14, 2011 FOCUS PAGE 11 Does right to silence apply in labour probes? J R Property case shows limits of ministry investigators' powers BY KENNETH JACKSON For Law Times I t's pretty well known that suspects in criminal inves- tigations have the right to remain silent, but does the same apply to Ministry of Labour probes? It does, but exactly how or when it comes into play leads to another question: when does a potential accused have the right to remain silent and ask for a lawyer? According to Ryan Conlin of Stringer Brisbin Humphrey Management Lawyers in Toron- to, the issue is a confusing one. He believes it's one of the most baffl ing issues that occur in oc- cupational health and safety in- vestigations. It's not as black and white as, for example, the rights of a murder suspect are even though inspectors in labour in- vestigations have to caution or read the potential accused their rights when they have reason- able and probable grounds that an off ence has happened, ac- cording to Conlin. "Th e diffi cult legal question which arises is at what point does the inspector form the 'rea- sonable and probable grounds' which trigger the obligation to read a potential accused his or her rights," said Conlin in a recent blog post on his fi rm's web site. In an interview with Law Times, Conlin explains the problem further. "It's been my experience [that] the Ministry of Labour takes the position in 'Because corporations do not have a Charter right to silence, they are compellable at trial,' says Jeffrey Percival. the early stages of an accident in- vestigation that none of the par- ties really have a right to remain silent and they typically proceed . . . to rely upon their mandatory inspection powers that include this obligation to co-operate with them and provide informa- tion to them," says Conlin. It's not uncommon for the ministry to then turn around and use that information against an individual later in the investi- gation, he notes. Th e problem is that if people refuse to meet with an inspector, authorities can charge them with obstruction. Th at was the case in Ontario (Ministry of Labour) v. J R Con- tracting Property Services. Teisha Lootawan was the al- leged supervisor of a worker in- jured at a construction site. Th e worker claimed Lootawan was Let us open right door for you the JENNIFERCOSTIN London Office 519-640-6370 jcostin@lerners.ca SHANNONPUDDISTER Toronto Office 416-601-2389 spuddister@lerners.ca We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson is a leading employment and labour law fi rm situated in the heart of Toronto. We are comprised of eleven lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Kuretzky Vassos Henderson LLP Our work includes extensive experience in the areas of: Wrongful dismissal • Human rights • Labour relations/Labour law/Collective barganing • Workplace health and safety • Sexual harassment • Employment standards • Employment contracts • Canada Labour Code • Class actions • Mediation/arbitration/ADR www.kuretzkyvassos.com • 416.865.0504 Kuretzky_LT_July11_11.indd 1 www.lawtimesnews.com 7/5/11 3:32:01 PM ntitled-1 1 11-11-10 3:05 PM London: 519 672 4510 Toronto: 416 867 3076 www.lerners.ca The Lerners Employment Law Group represents employers and employees on any issues or disputes that arise in the workplace. Referrals are always respected and we work collaboratively with other lawyers as independent counsel for related entities. Put our experience to work to your advantage. Contact Shannon or Jennifer today. his supervisor, but other people interviewed by ministry inspec- tor Jeff Lomer said she wasn't. Lom er contacted Lootawan for a statement. She said she was only willing to meet with him if he provided a list of prepared questions she could review with her lawyer. During this time, he un- covered evidence to suggest Lootawan was in fact more in- volved than he fi rst thought. He then issued a written order re- quiring her to meet with him. Th ere was a catch. If she didn't meet with him, she could be found guilty of refusing to com- ply, a scenario that could leave her with a fi ne of up to $25,000 and send her to jail for up to a year. "He basically said, 'If you don't answer these questions, we're go- ing to charge you with obstruc- tion,'" says Conlin. But Lomer didn't caution Lootawan. She met with him even though he had strong evi- dence against her. Th e courts found he should have cautioned her and threw out her statement. "Lootawan was compelled to attend and provide a statement after she had asserted her right to silence," wrote Justice of the Peace Mary Ross Hendriks in her June 8, 2011 decision. "Her right against self-incrimination was violated by the state. Th e fruits of this interview constituted a war- rantless search. She was not pro- vided with a caution, although objectively, Mr. Lomer had rea- sonable and probable grounds to charge her." Conlin notes Lomer had some pretty clear information that Lootawan at least appeared to have misrepresented her role with the employer to him. "Th at was the issue with the case, as to whether she was ac- tually a part of the employer or not," says Conlin. "Th ey had found evidence she had been placing help wanted ads in the newspapers. I guess any con- tention that she wasn't involved with the employer was a some- what dubious one." Still, he wasn't surprised that the court excluded the statement. "Frankly, if it hadn't been exclud- ed, I would have a diffi cult time imagining the right to remain si- lent exists in these cases," he says. Labour and employment lawyer Jeff rey Percival of Pallett Valo LLP says it's a diff erent story when the corporation is charged. Corporations, he notes, have no right to silence. "Because corporations do not have a Charter right to si- lence, they are compellable at trial. So if it's the corporation that is being charged, they have no right to silence." Someone has to speak for the corporation at trial, but unless that individual is facing charges as well, he or she has no right to silence. According to Conlin, the Lootawan matter was a rare case. He believes the law is still devel- oping and says employers and individuals should seek the ad- vice of counsel immediately after an accident happens. While he thinks the Lootawan case will see inspectors cease issuing compliance orders late in an investigation, he says the case still doesn't address their ability to compel a statement at the early stages. Th e questions, then, remain.

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