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Crown’s Failure to Properly Identify Corporate Accused Results in Directed Verdict Dismissing Charges Under the OHSA

In a recent decision by the Ontario Court of Justice, Provincial Offences Court, Karen Fields, a Partner in our firm, was successful in having a charge under the Occupational Health and Safety Act against our client dismissed.  Charges stemmed from the partial collapse of the third floor in a building under construction in Parry Sound, Ontario.

Our client was charged as an Employer, with committing an offence contrary to section 25(1)(c) of the Act, which requires an Employer to ensure that prescribed measures and procedures are carried out in the workplace.  At the close of the Crown’s case, Ms. Fields brought a motion for non-suit, or “directed verdict”.  A motion for non-suit essentially argues that the Crown has failed to present sufficient evidence in their case, such that the Court should make a finding for the Defendant without the Defendant having to present its own evidence.  In its reasons for decision, the Court reiterated the test to meet on a motion for directed verdict, stating in part:

The test of course on a motion for non-suit or directed verdict is that the defence is entitled to move for same on the basis that the Crown has not presented a prima facie case, i.e. a case containing evidence on all essential points of the charge which, if believed by the trier of fact and unanswered, would warrant a conviction.

In this case, Ms. Fields advised the Court that the name of her client as identified by the Crown, was a non-entity.  No individual was named, and nor was a corporation.  Rather, the Crown had only identified a business name, the name under which the Defendant conducted business, but not its legal identity.  The Crown counsel then moved to amend the name of the accused to the individual person who was a part of the corporation rather than the proper legal name of the corporation.

The Court agreed with Ms. Fields’ position, emphasizing the importance for the Crown to properly identify the corporation accused of breaching the Occupational Health and Safety Act.  The Court made this point clear by stating:

A corporation has no existence apart from its corporate name.  An individual may be identified and held responsible for his act whether his name is known or not.  His identity is corporeal, but that of a corporation is incorporeal.  An individual may be convicted only by the name which it legally pursues … when it comes to taking action at law, or enforcing a conviction for a criminal or quasi-criminal offence, unless the exact name is used, the attempt to bind the corporation is ineffective.

The Court stated that one of the essential elements in all criminal or quasi-criminal (as in the case of an OHSA prosecution) cases is the identity of the accused.  Accordingly, the Court granted the motion for a directed verdict, and dismissed the charge against our client.

Employers who are subject to Occupational Health and Safety charges quickly learn how much work can go into preparing a diligent and full defence to the charges.  The Court’s decision in this case should come as a welcome reminder to employers of the duty on the Province to prosecute its charges in accordance with the principles of natural justice, which includes properly identifying the party accused of breaching the Act.  The lawyers at CCPartners are experienced and capable of ensuring that employers’ rights are safeguarded and justice is preserved in defending all charges under the Occupational Health and Safety Act.

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