Ontario (Labour) v. Miller Group Inc., 2021 ONCA 879
This decision related to a workplace accident investigation by the Ontario Ministry of Labour “MOL”, whose inspectors had seized and inspected paving equipment, a rubber tire roller, which injured two employees. Prior to MOL’s inspection, the employer’s counsel had written to MOL inspectors informing them of the wrongful seizure of the roller and requiring MOL to obtain the employer’s consent for the inspection of the roller. In the absence of such consent, MOL disassembled the roller for its inspection and returned it to the employer with an offer to reassemble it. The employer declined MOL’s offer and gave the roller away as scrap without conducting its own testing. The investigation led to workplace safety charges against the employer and supervisor under sections 25(1) and 27(1)(a) of the Ontario Health and Safety Act, R.S.O. 1990, c.O.1 “OHSA”.
The employer filed a pre-trial application alleging its rights were violated under sections 8 and 11(d) of the Charter. Although the section 8 claim was dismissed, the Justice of the Peace determined that the inspectors had violated section 11(d) by: proceeding with their inspection despite receiving the lawyer’s letter; failing to maintain appropriate notes; not following internal policy manuals; and giving conflicting testimony. Without a clear explanation, the Justice of the Peace also excluded the results of the inspection under either sections 24(1) or (2) of the Charter. The Justice of the Peace dismissed the charges against the employer and the supervisor. The Crown’s appeal of the decision was dismissed with the finding that: the Justice of the Peace had not committed any legal errors by excluding the results of the inspection as a remedy for the violation of section 11(d) of the Charter; and it was unnecessary to address the employer’s and supervisor’s submissions regarding a violation of section 8 of the Charter. The Crown was granted leave to appeal under section 131 of the Provincial Offences Act, R.S.O., c. P. 33.
The Ontario Court of Appeal found that the Justice of the Peace had erred in finding an infringement of the employer’s and supervisor’s Charter rights because of how the MOL conducted the investigation and such error was endorsed by the appeal judge. The error arose due to the significance attributed to the lawyer’s letter, by the Justice of the Peace, which resulted in further errors. In this regard, the Court of Appeal noted that the lawyer’s letter had not insisted that the employer’s representatives had to be present for the MOL’s inspection. The inconsistency of the inspectors’ testimony and sufficiency of note-taking may have been relevant at trial but were not relevant to support a Charter violation. Moreover, the Justice of the Peace erred in awarding a Charter remedy, which error was upheld by the appeal judge, in the absence of any evidence of prejudice to the employer or supervisor.
The Court of Appeal reviewed an accused’s rights under the criminal law and held that section 11(d) of the Charter did not give the accused person a constitutional right to direct the conduct of a police investigation about them or give the accused the right to insist that further or other investigatory steps be taken. The police were not required to obtain the accused’s consent before proceeding with an investigation nor were the police required to have the accused present during its inspection or testing of physical evidence. With reference to section 320.13(2) of the Criminal Code, R.S.C. 1985, c. C-46, the Court of Appeal used the example of a case where the dangerous operation of a motor vehicle caused bodily harm after the driver lost control and their vehicle landed in a ditch, seriously injuring the driver. In these circumstances, after lawfully seizing the vehicle, the police were not required to obtain the driver’s and/or owner’s consent to conduct a mechanical inspection of the vehicle, nor was the police required to have the driver and /or owner present during such inspection. Rather, the police were required to preserve the vehicle and its contents for testing or examination by the accused. Therefore, it would not be reasonable to provide the subjects of an OHSA investigation with Charter rights extending beyond those provided to the subjects of a criminal investigation. Requiring the knowledge, consent, and indeed, the presence of the person under investigation, could not only interfere with and delay timely investigations, it could also endanger the very workers and the public the legislation was meant to protect.
In addition, since the essence of the issue to be decided involved a claim of lost or destroyed evidence, the Justice of the Peace erred in applying the wrong framework to find a violation of section 11(d) of the Charter. Neither the employer or supervisor had established any prejudice arising from the inspectors’ use and inspection of the roller, nor could they given that the employer had foregone the opportunity to conduct its own testing.