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The Court Of Appeal Says Third Time Is Not A Charm

Reading Time 4 minute read

"Do" Diligence: OHS/WSIB Newsletter

The Court of Appeal has released a decision in an occupational health and safety case that reminds us that there is considerable risk for employers under that Ontario legislation. The case of Cobra Float Services Inc.[1], addressed an important question of the right to a trial within a reasonable period of time and why that right ought not to be ignored. This is particularly important as we see the reopening of the courts after a shutdown during COVID-19.

The facts of the case are tragic, involving the death of a worker while unloading a large piece of equipment which fell over and crushed him. The worker's employer, Cobra Float Service Inc. ("Cobra") was charged with failing to ensure that equipment was not moved in a manner that may endanger a worker.

The Ministry of Labour investigated the incident and laid charges under the Occupational Health & Safety Act. ("OHSA"). After a five-day trial, Cobra was acquitted by a Justice of the Peace on the basis that it had established, on a balance of probabilities, the defense of due diligence.

There was no objection before or during the trial that it took too long in getting to trial or that the trial had taken too long, thereby violating the employer's constitutional right to have a trial within a reasonable period of time, pursuant to s. 11(b) of The Charter of Rights and Freedoms ("Charter").

The Crown appealed the acquittal and was successful in having the acquittal set aside and a conviction was entered on the appeal. Sentencing of Cobra was adjourned, at which time the lawyer for Cobra raised, for a first time, an allegation of the violation of the constitutional right to a trial within a reasonable period of time. The Appeal Court dismissed Cobra's s.11(b) application, on the basis that as a statutory court, under the Provincial Offences Act, he had no inherent jurisdiction to grant a new Charter application on the appeal for the first time.

The two important issues that Cobra was given leave to appeal to the Court of Appeal were as follows:

  1. Did the Appeal Judge have jurisdiction to consider the s.11(b) application brought before him for the first time on an appeal?
  2. If the answer to question 1 was yes, did the Appeal Judge properly exercise his jurisdiction and dismiss the s.11(b) application?

The Court of Appeal ruled on the first point in Cobra's favour by confirming that the Appeal Judge, the second hearing after the first hearing at the trial, had jurisdiction to consider the s.11(b) application on appeal.

The Court of Appeal went on to consider the Charter application on its merits. It acknowledged the governing law under the Jordan decision of the Supreme Court where the presumptive 18-month period from the start of the prosecution to the resolution of the trial was imposed by the highest court. However, the Court went on to review other caselaw that suggests a failure to object to unreasonable delays, and a failure to move for a stay either before or at trial, would in most cases be fatal to the constitutional complaint. The Appeal Judge determined, as a finding of fact, that there were multiple opportunities for defence counsel to raise concerns about pre-trial delay. The failure to exercise these opportunities, and to raise the issue until the appeal, should be discouraged, according to the Court of Appeal.

Ultimately, the Court of Appeal upheld the decision of the Appeal Court below, but for different reasons. Although the Appeal Court was allowed to hear the constitutional argument for the first time, which it declined to do, it was not to be encouraged and was ultimately rejected by the Court of Appeal. The failure of Cobra's counsel to raise concerns about the delay before and at trial undermined its ability to successfully raise this constitutional concern on appeal.

This decision raises important implications for employers and other parties charged with provincial offences, including those under the OHSA. COVID-19 has resulted in a voluntary suspension of judicial proceeding for six months, or longer. Further, under a statutory order, limitation periods were suspended from March 16 to September 14, 2020. Therefore, considerable delay in laying charges and considerable delay in the proceedings in the Provincial Offences Court, will undoubtedly result in a compounding effect of delay in the administration of justice.

Corporate employers and other stakeholders who are charged with provincial offences prosecutions, including charges under the OHSA, should be making their objections clear on any unreasonable delay in trial proceedings.

It remains to be seen how sympathetic the courts will be for the delay of prosecutions that have been commenced beyond the Jordan 18-month guidance for compliance with s.11(b) constitutional rights of defendants caused in part by the pandemic. However, it is clear that early and frequent expressions of concern about the constitutional right to a trial within a reasonable period of time, COVID notwithstanding, must be made to protect a client's rights under s.11 (b) of the Charter. Otherwise, even if you win at trial like Cobra, the government's challenge on appeal may not be stopped by a late, delay argument.


[1] 2020 ONCA 527