Law Times

Law Times • march 27, 2017 Page 5 www.lawtimesnews.com NEWS Jordan reason charge stayed in workplace fatality BY JENNIFER BROWN Law Times A n Ontario judge has stayed a Ministry of Labour charge against a company accused in a workplace fatality because the matter dragged through the sys- tem for 55 months and the trial was more than two years old. Norm Keith says prosecutors at the Ministry of Labour and other government departments have not been paying attention to corporations that are in the process of being prosecuted sim- ply because they assumed maybe that Jordan didn't apply. In yet another application of R. v Jordan, on March 17, Jus- tice Peter Wilkie of the Ontario Court of Justice stayed a charge in R. v. Stephenson's Rental Services, saying the right of the defendant to be tried within a reasonable time under s. 11(b) of the Charter had been breached. "The defendant's trial has clearly been unreasonably de- layed whether the analysis is under the Jordan framework or that of Morin. The Crown prin- cipally due to its ongoing failure to provide timely disclosure and its overall complacency about the pace of the litigation is re- sponsible for the vast majority of the delay with the rest accounted for by institutional time con- straints," Wilkie wrote. Justice Wilkie also stated: "In my view it is apparent from the court's summary of the chronology of the trial itself, that the Crown made no efforts to manage the case so as to im- prove the pace of litigation but in fact through lack of focus and inaction further contributed to the delay." While there have been a couple of other stays issued under Jordan, Fasken Marti- neau DuMoulin LLP lawyer Norm Keith predicts there may be more to come. "I think prosecutors at the Ministry of Labour and other government departments have not been paying attention to corporations that are in the pro- cess of being prosecuted simply because they assumed maybe that Jordan didn't apply, but this case definitively asks does Jor- dan supersede CIP [R. v. CIP Inc.], which sets a higher test for prejudice for a corporation than an individual. "CIP basically said you can't presume prejudice just because of a long delay under s. 11(b) — you have to prove as the cor- porate defendant that you have suffered irremediable prejudice," says Keith, who represented Ste- phenson's Rental in the case. And in his decision, Wilkie states: ". . . at the heart of Jordan is the objective to change the culture of delay in the justice system as a whole and to require all trials to function as efficient- ly as possible. In this sense they have signaled that when section 11(b) is breached it is not just the particular defendant who is prejudiced but the justice system and by extension the commun- ity as a whole. There is no basis for concluding that this object- ive applies only to trials of indi- viduals." The charge against Stephen- son's Rental Services, issued under the Occupational Health and Safety Act, arose from a workplace fatality that occurred at the General Motors plant in St. Catharines, Ont. on Nov. 18, 2011. The worker was an em- ployee of Procon Niagara, con- tracted by GM to do work at its plant. At the time of the incident that caused his death, the per- son was operating an electric- powered elevated work platform also known as an articulating boom lift, which had been rent- ed by Procon from Stephenson's Rental Services. The allegation was that the equipment provided by Stephen- son's was mechanically defective and not in proper working order. At the time the delay application was heard in January 2017, the case had been in the system for more than 55 months and the trial was more than two years old. But that was not the first time there had been an assertion by Keith that the proceedings breached his client's right to trial without reasonable delay. There was a 30-month delay from the laying of the charge in June 2012 to the beginning of trial in December 2014. Keith brought an 11(b) ap- plication returnable on the trial date. The two-and-a-half years leading to the trial included a 19-month period involving 13 appearances before the trial was set including one, where with no explanation, no one appeared for the Crown. Keith says the Crown was arguing it was a complicated case with expert witness materi- al involved. However, the judge pointed out the Crown had taken too long to turn its mind to the ex- pert witness material. "There is no question that the expert disclosure did take the Crown by surprise, but only because they had to that point, well into the trial, at least 2 years after he had been retained by the Ministry to provide critical expert testimony, inexplicably in my view, failed to turn their mind to it," said Wilkie. Keith admits he himself was responsible for about nine days of the delay in August 2015 due to a scheduling issue, but other than that, the judge said when it came to the defence, "there was no waiver and no tactic calculat- ed to cause delay." It then took about a year from the time the expert first gave evidence to get him back on the witness stand. "Even the witness himself seemed surprised that he had never been asked to produce his work product beforehand or to bring supporting documenta- tion with him to court," Wilkie stated in his decision. "And of course when alerted to the issue, the Crown readi- ly agreed that the defence was entitled to disclosure of the material and conceded the case would have to be adjourned to enable the defence to receive and review it." Given the way the case un- folded, it seems like a more "unique matter," says Jeremy Warning, partner with Mathews Dinsdale & Clark LLP in To- ronto. "Typically, you don't see pro- tracted disclosure issues like it appears occurred in the Ste- phenson's case where the de- fence had been chasing material, it appears, for quite some time and then on the eve of trial is disclosed a fairly voluminous amount of documents and ma- terials to review," says Warning. In terms of the facts set out, Warning says the case is "dif- ferent from what one normally sees" with Ministry of Labour cases. "It's unfortunate that this case didn't proceed as expeditiously as the law says it should because a stay of proceedings has denied a verdict on the merits — I'm not suggesting there had been an of- fence — but the merits were nev- er determined and never will be determined," says Warning. "In terms of the administra- tion of justice, there is some ero- sion of the judicial process in the fact the charges had to be stayed, but one has to balance the societal interest in achieving a verdict on the merits against the individual interest of the defendant to have a trial in a reasonable time when they can fairly challenge the evi- dence advanced by the prosecu- tion. That's an equally compel- ling consideration." The net delay was at least 60 months — 41 months above the presumptive ceiling. As Jordan was decided the first week of July 2016 and the Stephenson's case started in December 2014, the Crown had argued the Jordan 18-month rule didn't apply. But the judge disagreed, even noting that the Region of Niag- ara was not one where a culture of long delays was the norm. "Ultimately, the right to trial within a reasonable period of time of the accused, be it individ- ual or corporate, is superseding the social interest of a trial going to final decision," says Keith. In a case such as this, a cor- poration facing conviction could face a fine in the range of $100,000 up to $500,000. A statement from a spokes- woman from the provincial Ministry of Labour said: "Crown officials are carefully reviewing the court's decision to determine if there will be an appeal. "The matter remains before the court during the appeal pe- riod, and in order to preserve the fairness of the process, we will not comment on the case, spe- cifically," said the statement. "Without commenting on the merits of the decision, we do want to assure families and loved ones that we continually review our processes to ensure we do ev- erything we can to protect work- ers and ensure just results." LT Norm Keith says prosecutors at the Ministry of Labour and other government depart- ments have not been paying attention to corporations that are in the process of being prosecuted simply because they assumed maybe that Jordan didn't apply. 5 th Annual Anti-Bribery and Corruption Compliance Toronto • Online | April 2017 COURSE LEADER John W. Boscariol, Partner, McCarthy Tétrault LLP COURSE HIGHLIGHTS • Anti-Corruption Landscape For Canadian Companies • Review Of Key CFPOA Convictions • The US Foreign Corrupt Practices Act • World Class Ethics & Compliance Program: The View From SNC-Lavalin • The UK Bribery Act: Extraterritorial Application To Canadian Companies • The Perspective From In-House Counsel: Compliance Challenges And Solutions • Investigating Potential Breaches Within The Company And Dealing With Enforcement DATE & LOCATION Toronto: April 25th, 2017 St. Andrews Club and Conference Centre 150 King St West, 27th Floor, Toronto, ON M5H 1J9 Live webinar: April 25th, 2017 FOR QUESTIONS AND GROUP RATES, PLEASE CONTACT: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: cpdcentre.ca Email: lexpert.questions@thomsonreuters.com Register online at www.lexpert.ca/cpdcentre For more information, please contact Lexpert® Professional Developments at 1-877-298-5868 NAVIGATING MUDDY WATERS EARLY BIRD EXTENDED TO APRIL 7 Untitled-2 1 2017-03-22 10:15 AM The defendant's trial has clearly been unreasonably delayed whether the analysis is under the Jordan framework or that of Morin. Justice Peter Wilkie

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