OHS Canada Magazine

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LONG STORY SHORT


A professional engineer facing a charge under Ontario’s Occupational Health and Safety Act came out on top during a recent showdown between individual rights and the public interest.

The charge against Wayne Vollick alleged he had provided negligent or incompetent advice or certification, as an engineer, for equipment that endangered a worker.

In November, 2006, Ontario’s Ministry of Labour (MOL) conducted a workplace safety audit of Booth Centennial Healthcare Linen Services in Mississauga, west of Toronto. The company was ordered to guard equipment that posed a danger to workers, to complete an engineering review and to provide an engineer’s certification once that was done.

The company hired a consulting firm to prepare a health and safety review, and contracted Vollick to examine equipment and recommend modifications. On January 2, 2007, he certified changes made by the company.

On April 26 of that year, Booth Centennial Healthcare employee James Duxbury sustained fatal injuries after becoming trapped between the chute and door opening of a washer extractor, equipment that Vollick is alleged to have certified as safe and in compliance with Ontario’s OH&S Act.

The MOL reports that the provincial investigation determined the equipment was not properly guarded and the engineering recommendations had not been fully implemented.

Last December, Judge John Murray of the Superior Court of Justice upheld a ruling by a lower court to stay the charge against Vollick.

Judge Murray writes that the engineer, as part of his professional responsibilities, undertook to certify that equipment was safe and, if operated properly, unlikely to endanger a worker. “As such, he is in a position of special responsibility because both employers and workers rely on his expertise.”

It was alleged that Duxbury “died as a result of the machinery being unsafe after certification had been provided,” the ruling notes. “There is no doubt that society has a strong interest in seeing this accused person brought to trial.”

HOOPS AND HURDLES

That said, Judge Murray concludes the delay in doing so was “unreasonable.” Charged on December 21, 2007, Vollick’s trial had yet to start by the time he introduced a motion last fall to stay the oh&s charge.

Judge Murray singles out the MOL for acting slowly on vital information provided by Booth Centennial Healthcare in May, 2009. “In the dilatory execution of the search warrant at the premises… approximately three months after it became aware of the existence of evidence on those premises, the Crown made insufficient effort to preserve the existing trial dates without any explanation,” he writes.

The Ontario Court of Justice had earlier concluded, and Judge Murray agreed, that the Crown’s failure to “diligently pursue” new evidence resulted in the trial not being held within a reasonable time, a contravention of Vollick’s rights under the Canadian Charter of Rights and Freedoms.

With the charge stayed, allegations against Vollick remain unproven. (Booth Centennial Healthcare was fined $90,000 in May of 2009 after pleading guilty to failing to acquaint a worker with hazards associated with the use of a washer extractor, and failing to provide a copy of a safety review to the company’s joint health and safety committee.)

The case is a clear reminder that the Charter right applies in the context of workplace safety prosecutions, says Jamie Jurczak, an associate at Taylor McCaffrey LLP in Winnipeg. “The accused in regulatory offences – and oh&s offences at that – have the same interests as those facing charges in Criminal Code offences,” Jurczak says.

Charged in December of 2007, a series of adjournments and disclosures resulted in Vollick’s trial first being set for September, 2009, and then being pushed back to April, 2010. Judge Murray points out that Vollick received 18 volumes of information after being charged, as well as seven separate disclosures between December, 2008 and September, 2009.

One of these, dated August 17, 2009, included recommendations from other engineers, information the Crown had been made aware of in May and that was relevant to the charge against Vollick. Not only did the disclosure show that the MOL delayed securing a warrant, “it is not obvious, at least to me, why engineering work done by others is relevant to the issue of Mr. Vollick’s alleged negligence,” Judge Murray writes.

In the lower court ruling, Judge Elliot Allen of the Ontario Court of Justice determined that when it became apparent that evidence affecting the case might be forthcoming, it was incumbent on the Crown to move expeditiously. It did not do so, Judge Allen concluded.

Because the court is fully booked about eight months in advance, he noted, most longer trials “are an adjournment away” from spurring a similar Charter application.

Judge Murray writes that Vollick was prepared to commence trial in September, 2009 and would have done so “but for the late receipt of the disclosure.” The trial was rescheduled for April, 2010, but before it could get under way, Vollick had submitted his Charter motion.

MOL spokesperson Matt Blajer says the ministry has no plans to pursue an appeal. “In light of the court’s comments, we are reviewing our processes,” Blajer adds.

COMPLEX MATTERS

The case raises the issue of how much time is too much when it comes to legal delays?

For guidance, courts in this country turn to R. v. Morin, a Supreme Court of Canada ruling from 1992. “All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins,” notes the high court decision.

Judge Murray writes that the Ontario case “has some complexity given that the issues involved whether Mr. Vollick provided negligent advice or certification regarding the equipment in question.” Nonetheless, the year that elapsed between when he was charged and when trial dates were first arranged was “not warranted by the complexity of the case.”

By Judge Murray’s calculation, institutional and Crown delays amounted to 18 months. “This delay far exceeds the eight- to 10-month guideline set in Morin.”

Of the year between the charge and first trial dates, Judge Murray notes that “a five-month period for inherent delay is at the outside limit of reasonableness.”

The judge also cites Vollick’s assertions that “there has been some adverse impact on his ability to earn a living,” and evidence that he “has experienced high stress for which he has received both medical and pastoral counselling.”

Taken together, “these things are evidence of prejudice,” the ruling notes. “Even if one views the prejudice as being minimal, the length of the delay is unreasonable and amounts to a violation of Mr. Vollick’s constitutional right to be tried within a reasonable time,” the judge notes.

Prejudice, along with some other factors considered by Judge Murray, would have “the same effect on corporations in oh&s prosecutions as individuals,” Jurczak says. “An oh&s charge can have an impact on the public perception of a company, and the accused corporation could suffer prejudice if there is a delay, such as lost business or goodwill.”

While firms facing oh&s charges must be tried within a reasonable time, there are some differences in the legal tests applied, says Michael Fortier, a partner with Torys LLP in Toronto. “This is because two of the right’s purposes – to minimize the time spent by an accused in pre-trial custody and to minimize the anxiety experienced by the accused – apply only to individuals,” Fortier says.

“As a result, it is possible that, even though both an accused individual and company experience the same delay to be tried, only the charges against the individual will be stayed.”

Fortier says that the Vollick case “emphasizes the importance of requiring the Crown to provide all disclosure to which the accused is entitled.” This is “fundamental” for individuals and companies to understand cases against them, he adds.