Canadian Safety Reporter - sample

5 Canadian HR Reporter, a Thomson Reuters business 2017 News | June 2017 | CSR Company charged in workplace fatality has charges stayed after lengthy trial delay Company who made machine that malfunctioned and caused fatal accident denied charter right to timely trial after nearly 5-year delay BY JEFFREY R. SMITH AN ONTARIO-based company's health and safety charge stem- ming from the death of a con- struction worker using its equip- ment has been stayed due to a more than four-year delay in the case coming to trial. Stephenson's Rental Services is a company based in Mississau- ga, Ont., that provides industrial and construction equipment for rental. It operates several loca- tions in Ontario and Alberta. In 2011, Stephenson's rented an articulated boom lift – an electric-power elevated work platform – to Procon Niagara, a construction company that had been contracted to do work at a General Motors (GM) plant in St. Catherines, Ont. On Nov. 18, an employee of Procon was working on the boom lift when he was killed in an workplace accident. An investigation de- termined that the boom lift was mechanically defective and not in proper working order. Stephenson's was charged on June 30, 2012, with violating the Ontario Occupational Health and Safety Act by providing faulty equipment that contrib- uted to the worker's death. How- ever, the trial didn't start until 30 months later, in December 2014. The delay until the start of the trial was partly caused by the Crown only providing mate- rial requested by Stephenson's bit-by-bit, requiring several re- quests. On one occasion, the Crown failed to show up at a pre-trail appearance to discuss submissions of material. The trial hearing was set to begin in January 2015, but no one appeared for the Crown at a confirmation hearing a few months earlier, due to an over- sight. The hearing was resched- uled but again the Crown didn't appear. A third hearing date fi- nally saw both parties present, but Stephenson's maintained there was still material that needed to be disclosed by the Crown, including all the wit- nesses to be called. At the start of the trial in Au- gust 2015, the Crown turned over two binders of material that Stephenson's had been seeking. In order to allow the company's representation to review the ma- terial, the first three days were vacated and additional days were scheduled for September and October. By this time, the Crown asserted that Stephen- son's had full disclosure to all materials and every witness it intended to call during the trial. Surprise information needed review However, during the testimo- ny of a Crown expert witness, it became apparent that the Crown still hadn't disclosed all the required information to Ste- phenson's counsel, including a large file of notes, photos, docu- ments, and test results support- ing the expert witness' report. The Crown hadn't been initially aware of the file, but once the ex- pert witness mentioned it agreed that it should be disclosed. Problems with the expert witness continued as he brought the file on two flash drives that couldn't be easily accessed. As a result, the trial was shut down and delayed until the following year as hundreds of pages of additional information were disclosed. The trial was scheduled to re- sume in April 2016, but shortly before that the Crown's expert witness had elective eye surgery that would make him unavail- able. The witness informed Stephenson's that he had never been notified of the new trial dates. The trial was rescheduled once again to September. The trial resumed in Septem- ber and the expert witness was vetted to confirm his qualifica- tions. However, the Crown ne- glected to lead evidence through the witness that was essential to its case and sought to call him back after he had finished. The court ruled the expert witness could be recalled the witness, which would cause another short delay. Stephenson's filed an applica- tion under the Canadian Char- ter of Rights and Freedoms to stay the charges against it on the grounds of an unreasonable de- lay. It was now four years after the company had been charged. Defendant company played no role in delay: Court The Ontario Court of Justice found that while there were many applications and motions filed by both sides over the more than four years, none of the delay could be attributed solely to Stephen- son's. The company made several charter applications, but none the court considered "frivolous" and none that directly caused a delay. In addition, the Crown didn't make any assertion that Stephenson's had made any at- tempts to delay the proceedings. The court determined that the expected ceiling for the trial to take place was 19 months. With the delay already, it calculated the trail to last at least 60 months – an unacceptable length of time to delay the trial, the court said. The Crown argued that much of the delay could be attributed to Credit: Shutterstock/icedmocha Some delays > pg. 8

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