A recent interim ruling by the Ontario Court of Justice is sending an important message to employers after it deemed an aspect of the Ministry of Labour’s evidence inadmissible because the organization had failed to provide full disclosure.
The ministry was persecuting Advanced Construction Techniques after the company’s drill rig fell over without warning, killing one worker at the York University construction site and seriously injuring another.
At the time, police offers had taken a LiDAR 3D scan of the site but the Ministry of Labour assured employment lawyers that it would not be relying on the evidence – however, mid-way into the trial, the department changed it stance.
“We ran a defence based on the representation and the promise of the prosecutor that they weren’t going to rely on the evidence,” says ACT’s lawyer Norman Keith. “So it tainted and changed the nature of our defence strategy and our question of witnesses.”
Keith – a senior partner at Fasken Martineau
– fought to have the evidence thrown out on the grounds that it could have some adverse effect on the company’s ability to make a full defence.
Ultimately, Judge Brent Knazan agreed and found it wouldn’t be fair to include the evidence.
“It reminds the prosecution that they need to provide full, honest and transparent disclosure of the evidence and they have to provide it well before trial,” says Keith, explaining why the interim ruling is so important.
“They cannot change their mind without consequences or – as I put it in my argument – they can’t play trial by deception and ambush,” he added. “They need to be open and transparent as the law requires and they need to let us know what their evidence is so we can respond.”
Toronto-based Keith told HRM that the decision reinforces well-establish employer rights.
“It’s important because it protects corporations, employers or individuals who are charged and ensures that they know the case that they have to meet,” he says. “It’s a very fundamental principle in common law around the world as well as under our charter rights and freedoms in Canada”
Keith also warned that if regulators fail to comply, they could face having cases thrown out.
“Perhaps in a more extreme case or a repeat type of behaviour on behalf of the regulator and the prosecutor, the court may consider throwing the charges out,” he told HRM.
“If this becomes a systemic problem as it has in the past with the ministry then perhaps there will be more severe penalties or remedies available,” he added.
Keith also stressed that, regardless of the tragic circumstances, the ministry has to meet its legal obligations.
“Something terrible happened, there was a workplace fatality, but that doesn’t mean the process can be allowed to be compromised.”
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