The saga of Ontario (Ministry of Labour) v. JR Contracting Property Services, Lootawan and Haniff (case 1) has finally come to its conclusion (at least on the merits). Employers would be well-advised to learn from the case how not to engage with Ministry of Labour inspectors in the aftermath of a workplace accident.
Just over two years ago, our firm commented on the JR Contracting (case 1) in which the Ontario Court of Justice refused to admit the statement of a defendant, Ms. Lootawan. A Ministry of Labour Inspector compelled the statement and the Court found that the order violated the Charter of Rights and Freedoms. However, the charges against Ms. Lootawan and the other defendants remained on the merits.
In JR Contracting , the injured worker told the Inspector that Ms. Lootawan was his supervisor. Ms. Lootawan denied involvement. The Inspector eventually ordered Ms. Lootawan to attend and give a statement, with or without counsel present. She gave a statement, in which she purportedly made statements inconsistent with her earlier denials. She was charged with providing false or misleading information to the Inspector. Because that charge predicated entirely on the contents of the statement, which the Court struck, that charge against her was withdrawn. However, the remaining charges against her and the other defendants remained.
The case was recently decided on its merits. In JR Contracting (case 2), among the numerous charges before the Court another defendant, Mr. Haniff, was accused of obstructing, molesting or interfering with the Inspector in the exercise of a power or the performance of a duty. Specifically, Mr. Haniff attended at the Ministry’s offices pursuant to an order that JR Contracting provide certain information and documents. When Mr. Haniff arrived, he provided certain documents to the Inspector but he refused to answer any related questions. Mr. Haniff was convicted.
Lessons for employers
As we explained in our comment on JR Contracting (case 1), Ministry of Labour Inspectors wear “two hats” in the sense that they conduct both routine inspections and also conduct investigations for the purpose of pursuing charges in court. It is often difficult to determine at what point the Inspector forms the “reasonable and probable grounds” so as to trigger protections against warrantless search and seizure and the right to remain silent under the Charter. Before that, Inspectors have almost limitless powers to compel companies and all persons to provide information and documents relevant to their investigation. Refusing to do so, even while asserting the Charter is engaged, may give rise to obstruction charges.
Although in JR Contracting (case 1) Ms. Lootawan escaped conviction for providing false or misleading information to the Inspector, she did so only because the statement was the Crown’s case. It goes without saying that providing false or misleading information is unlawful.
One of the most important lessons to learn from the JR Contracting saga, is that just as due diligence is essential to avoid accidents and defend against potential charges, it is equally important with respect to accident response. When an accident occurs, tensions are high, a lot is happening, and the authorities don’t wait for the situation to settle down before commencing their investigations.
A safety related inspection or accident investigation can result in prosecution, high fines and fine surcharges. In the age of unprecedented enforcement of OH&S laws, it has become more complicated to strike the right balance between cooperating with the inspector and protecting your rights post-accident.
At the 2013 Ontario employment law conference, employment lawyer Ryan Conlin will discuss and provide you with strategic guidance so you can prepare. The session will help you:
- Act decisively and appropriately when there’s a knock on your door,
- Develop an accident response plan,
- Strike the right balance between meeting your reporting and cooperation obligations and your right to remain silent.
Register for the 2013 Ontario employment law conference—and Learn the latest! (Registrations now closed)
Stringer LLP
www.stringerllp.com
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