Ministry of Labour v Priscak

Ontario (Ministry of Labour) v. Priscak

[2008] O.J. No. 1215 | 77 W.C.B. (2d) 395 Ontario Superior Court of Justice — A.E. Cusinato J. | Heard: March 10, 2008 | Judgment: March 26, 2008

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Background

Four construction workers — Dave Priscak, Peter Quaglia, Timothy McLaughlin, and Joseph Bertocchi — were each charged with workplace safety offences under Ontario Regulation 213/91 (the Construction Projects Regulation), made under the Occupational Health and Safety Act (OHSA). Three were charged with failing to wear protective headwear contrary to section 22 of the Regulation, and one was charged with failing to wear protective footwear contrary to section 23. Each charge was commenced by way of certificate of offence under the Provincial Offences Act (POA). None of the respondents disputed their charges within the required 15-day window, triggering a mandatory review of each certificate by a justice of the peace under section 9(1) of the POA. Justice of the Peace Robert Ponton reviewed the certificates and quashed all four, on the basis that the name of the Occupational Health and Safety Act itself was not written on the face of the certificate. Only the applicable regulation (O. Reg. 213/91) had been identified. The Ministry of Labour, through the Attorney General, brought an application for judicial review seeking to have the quashing orders set aside and the proceedings reinstated.

Issues

1. Did the justice of the peace have jurisdiction to quash the certificates of offence on the basis that the name of the enabling Act was absent?
2. Is it a legal requirement under the POA that a certificate of offence name the specific Act under which an offence is created in order to be valid on its face?

Analysis

Jurisdiction and Remedy

Justice Cusinato first addressed the procedural question of whether the Crown’s application was properly brought as a judicial review rather than an appeal. Since the quashing of a certificate of offence by a justice of the peace is not equivalent to a conviction or dismissal, no right of appeal existed under section 116 of the POA. The Crown was therefore correct to seek relief under sections 140 and 141 of the POA — prerogative remedies in the nature of certiorari and mandamus — from the Ontario Superior Court of Justice. Leave was granted nunc pro tunc to cure a technical defect in the return date of the application.

Sufficiency of the Certificate

The core legal question was whether a certificate of offence is “complete and regular on its face” within the meaning of section 9(1)(a) of the POA when it names only the regulation — not the parent Act — under which the offence is charged. Justice Cusinato concluded that naming the Act is best practice and a recommended procedure, but it is not a legal requirement for a valid certificate of offence. His analysis rested on several points:

• Section 13(1) of the POA authorizes the Lieutenant Governor in Council to make regulations prescribing the form of certificates of offence and authorizing the use of abbreviated wording to designate offences.
• Section 13(2) expressly provides that the use of such abbreviated wording “is sufficient for all purposes to describe the offence designated.”
• Neither section 13(1) nor 13(2) mandates that the name of the parent Act appear on the face of the certificate.
• Ontario Regulation 213/91 is a unique regulatory instrument — its number and year identify it exclusively, and within it, the OHSA is referenced as the enabling authority. An offender who receives a certificate citing O. Reg. 213/91 and a specific section number has all the information needed to identify the offence charged.
• The court cited the “golden rule” from R. v. Cote (1977) (SCC): the accused must be reasonably informed of the transaction alleged against them so as to enable a full defence and a fair trial. Where the certificate sets out all relevant facts and links them to a specific section of an identified regulation, the accused cannot be misled.

Justice Cusinato found that the justice of the peace misinterpreted the applicable legislation, committed an error going to jurisdiction, and that without the court’s intervention, a substantial wrong and miscarriage of justice would result.

Decision

The application was allowed. The orders quashing the four certificates of offence were set aside. An order in the nature of mandamus was issued, directing that proceedings against each respondent be reinstated before a differently constituted justice of the peace in the Provincial Offences Court. Each reinstated proceeding was to be examined in accordance with section 9(1)(a) and (b) of the POA, O. Reg. 213/91, and the OHSA. Where no notice of dispute had been filed and the certificate set out a specific fine, the justice was directed to enter conviction and impose the set fine in the respondent’s absence.

Key Takeaways

• A certificate of offence under the POA is not required to name the parent Act in order to be valid on its face — citing the applicable regulation and section number is legally sufficient.
• Abbreviated wording authorized under section 13(2) of the POA is sufficient for all purposes to identify the offence charged.
• A justice of the peace who quashes a certificate solely on the basis of the absent Act name commits a jurisdictional error reviewable by the Superior Court via certiorari and mandamus.
• This case is a useful authority for prosecutors and defendants alike in understanding the minimum formal requirements for a valid certificate of offence in Ontario POA proceedings.