Are Statements by Inspectors About Whether Charges are Going to be Laid Binding on the MOL?

Time Published on February 26, 2014

One of the questions that have vexed employers over the years is how to respond to “off-hand” comments made by Ministry of Labour Inspectors in the course of investigations.  Employers often wonder whether comments made by Inspectors about whether charges will be laid have any legal consequence. 

This was the question before the Court in the recent decision of Ontario (Ministry of Labour) v. 1467344 Ontario Ltd.,  The issue before the Court stemmed from a conversation that the principal of an employer had with a Ministry of Labour Inspector during an investigation.  It was alleged that, in talking about the policies of his particular branch of the Ministry of Labour, the Inspector stated: “Our branch is different up here.  I know in southern Ontario they fine, fine, fine.  But we don’t do that here.” 

The Inspector issued a number of compliance orders as result of the investigation.  Employers have thirty days to appeal orders issued by the Ministry of Labour.  As the Defendant in this case found out, failing to appeal questionable orders can come back to haunt an employer if charges are laid. 

Take the example of a case where an Inspector issues an order to an employer to guard a machine after an accident.  The employer thinks that a guard is not necessary, but chooses to comply with the order rather than appeal to please the Inspector and avoid the time and costs associated with an appeal.  If the employer is charged with failing to guard the machine, the employer will face an argument from the Ministry of Labour that it cannot dispute that a guard was necessary at the trial because it failed to appeal the order.

In the matter before the Court, the employer argued that it chose not appeal the order because of the representations made by the Inspector about the likelihood of prosecution.   The employer argued that because it was induced by the Inspector’s statement to not appeal the orders, it would be an “abuse of process” to allow the case to proceed.

The Justice of the Peace disagreed and relied on the legal principle that halting a prosecution for an “abuse of process” should only occur where the actions of the prosecution representatives would make a trial unfair, or that allowing the case to proceed would shock the public conscience.

In cases like this, where an applicant alleges that there was a “deal” struck with an investigator, the employer must prove that it genuinely compromised its position and made a real concession in anticipation of some reward. 

The Court held that the employer did not establish that a “deal” was struck with the Inspector which resulted in the employer giving up the right to appeal the orders.  The Court pointed out that the employer was never actually told that the Ministry of Labour would not prosecute.  The Justice of the Peace stated that the inspector’s statements could have easily been interpreted as “[The inspectors of this branch] don’t jump to conclusions on the first day.”  Secondly, the choice not to appeal the orders as written was one purely made by the employer.  There was no evidence of any agreement with the Inspector about charges not being laid which was contingent on the employer choosing not to appeal. 

As the defendant employer was unable to show the existence of a deal, the Justice of the Peace found that he lacked the necessary evidence to demonstrate that this was one of those “clearest of cases” in which a prosecution should be halted on the basis of an “abuse of process”. 

What Employers Should Note

Although this case has yet to be decided on its merits, this preliminary motion reinforces the reality that statements from Inspectors about whether charges will be laid are unlikely to bind the Ministry of Labour.

An employer should never rely on an Inspector or any other party to protect its interests or to shield it from OHSA consequences.  Employers would be well advised to determine for itself, with the assistance of counsel, the proper response to orders at the time they are issued.  The 30 day appeal deadline is strictly enforced and charges can be laid up to 12 months after the alleged infraction.  So it will likely be too late if an employer chooses not to appeal orders and charges are subsequently laid. 

It should be noted that an appeal of orders in most cases is not time consuming or expensive.  The Ministry of Labour routinely seeks and obtains an adjournment of the administrative appeal pending a decision about whether charges should be laid.    

The window in which a prosecution will be stopped because of statements made by an Inspector or other government representative remains minuscule.  Employers must ultimately rely on their understanding and the advice of counsel in determining how best to respond to any interaction with the Ministry of Labour.

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