Company who made machine that malfunctioned and caused fatal accident denied charter right to timely trial after nearly 5-year delay
An Ontario-based company’s health and safety charge stemming from the death of a construction worker using its equipment 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 Mississauga, Ont., that provides industrial and construction equipment for rental. It operates several locations 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 determined 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 contributed to the worker’s death. However, 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 material requested by Stephenson’s bit-by-bit, requiring several requests. 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 oversight. The hearing was rescheduled but again the Crown didn’t appear. A third hearing date finally saw both parties present, but Stephenson’s maintained there was still material that needed to be disclosed by the Crown, including all the witnesses to be called.
At the start of the trial in August 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 material, the first three days were vacated and additional days were scheduled for September and October. By this time, the Crown asserted that Stephenson’s had full disclosure to all materials and every witness it intended to call during the trial.
Surprise information needed review
However, during the testimony of a Crown expert witness, it became apparent that the Crown still hadn’t disclosed all the required information to Stephenson’s counsel, including a large file of notes, photos, documents, and test results supporting the expert witness’ report. The Crown hadn’t been initially aware of the file, but once the expert 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 resume in April 2016, but shortly before that the Crown’s expert witness had elective eye surgery that would make him unavailable. 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 September and the expert witness was vetted to confirm his qualifications. However, the Crown neglected 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 application under the Canadian Charter of Rights and Freedoms to stay the charges against it on the grounds of an unreasonable delay. 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 Stephenson’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 attempts 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 unforeseen or unavoidable matters beyond its control and these created exceptional circumstances that should prevent a stay of the charges, as established in the recent Supreme Court of Canada decision of R. v. Jordan. The Crown also argued that since this trial involved a corporate accused, the standard for assessing a delay of trail didn’t apply.
The court found that this wasn’t a particularly complex case, as it involved a “single corporate accused charged with a single count relating to a single discrete event taking place on one day.” The only issue to be examined was the mechanical fitness of the articulated boom lift that Stephenson’s leased and there were no complicated legal issues, the court said.
The court also found that Crown didn’t take any positive steps to fix the disclosure issues that had been plaguing the proceedings, even after the delay surpassed the reasonable expected ceiling of 19 months for trial.
The court recognized that the Crown had been caught off-guard by the large file of documents its expert witness mentioned during testimony, but noted that the witness had been retained two years earlier and the Crown should have researched him more to learn of the file. Once the file’s existence was discovered, there was no option but to disclose it to the defence for review, said the court.
“This unfortunate development in the midst of a case that had already experienced inordinate delay ought not to have been unforeseen and was totally avoidable through the application of even a modest amount of foresight and planning,” the court said. “It is not a discrete event that excuses delay but rather the opposite, a misstep by the Crown that aggravated it.”
The court also found that the expert’s eye surgery that caused a delay wasn’t an emergency and it could have been easily avoided if the Crown had kept the witness informed of trail dates.
The court determined that the right of Stephenson’s under the charter to be tried within a reasonable amount of time was breached. As a result, it ordered the charge against the company to be stayed.
“Even with an extended intake period of six months and attributing another six months for the defence to prepare, the trial itself would still have started with 18 months of delay, pushing past Morin guidelines even in a case more complex than this,” said the court.
For more information see:
- R v. Stephenson’s Rental Services (March 17, 2017), St. Catherines 2111-999-12-3702-00 (Ont. C. J.).
- R. v. Jordan, 2016 SCC 27 (S.C.C.).
