Northern Ont. family in shock as workplace fatality case dismissed over trial delays

A grieving family in Noelville, Ont., is reeling after a judge dismissed a trial connected to a 2019 workplace fatality involving a close family member.

In a decision released Jan. 26, a judge with the Ontario Court of Justice dismissed the case because he ruled the Crown took too long to bring the case to trial.

James Bolger was 42 when he was run over by a loader May 19, 2019, while working for Taiga Building Products Ltd. in Monetville, Ont.

Bolger’s heart stopped en route to hospital in Sudbury but he was revived after 30 minutes. He spent 12 days in hospital before he was taken off life support.

His wife, Carylyn Bolger, told Amanda Hicks of CTV News that the family felt they didn’t have a choice other than to let him go.

“I knew he wanted to live, but I know he wouldn’t have wanted to live the way he was,” she said.

“And I don’t think he would have survived the surgery.”

Charges against Taiga Ltd. were filed in October 2020 under the Occupational Health and Safety Act. The company was charged with one count of failing, as an employer, to ensure that legally required measures and safety procedures were carried out in the workplace.

But after a series of delays, the case was dismissed because it took too long to come to trial. In Canada, under what’s known as the Jordan rule, there is a hard time limit to bring cases to trial – otherwise they are dismissed.

Bolger’s stepdaughter, Katie Charon, said she doesn’t understand why no one will be held accountable for his death.

“I’m disgusted,” said Charon said in an interview.

While charges were laid in 2020, the trial didn’t actually begin until January 2022. By October 2022, the case was still before the courts.

Some of the delays were attributed to the Crown, some to the defence and the onset of the COVID-19 pandemic.

Justice Leonard Kim ruled the total delays amounted to 729 days. When COVID-19 and defence delays were deducted, the total was 610 days, or 20 ½ months.

James Bolger was 42 when he was run over by a loader May 19, 2019, while working for Taiga Building Products Ltd. in Monetville, Ont. Bolger’s heart stopped en route to hospital in Sudbury but he was revived after 30 minutes. He spent 12 days in hospital before he was taken off life support. (Photos courtesy of the Bolger family)

That’s more than two months longer than the 18-month limit established in Canadian law under the Jordan rule.

Lawyer Michael Haraschuk, a partner with Weaver-Simmons in Sudbury, said the Jordan rule was established in 2016 to put time limits on cases.

The ruling was prompted by a case in which drug charges against a suspect took more than four years to come to trial.

“Under Section 11 B of the Canadian Charter of Rights and Freedoms, every accused individual has a right under the charter to have a trial within a reasonable time,” Haraschuk said.

Before the Jordan ruling, he said the Crown had “endless flexibility” when it came to how long they had to bring a case to trial.

While the Jordan ruling set strict limits, Haraschuk said the time limit depends on a number of factors.

“In this particular case, the presiding judge did consider the … event of the COVID-19, pandemic,” he said.

“The judge subtracted 39 days … and that was because of an adjournment that was directly related to the COVID-19 pandemic.”

Another 80 days were because of delays attributed to the defence.

NOT A COMPLEX CASE

But the Crown and defence both admitted this was not a particularly complex case, a factor that would have extended the limit beyond 18 months.

“And the lawyers themselves indicated to the judge, agreeing that the case was not particularly complex,” Haraschuk said.

“So there wasn't any exceptional circumstances.”

In an email to CTV News, the Ministry of Labour said it can’t comment on a decision of the court.

“Our thoughts are with the family, friends and colleagues of the worker who lost their life,” the email said, adding that it’s too soon to say whether the ruling will be appealed.

“The Crown has 30 days to determine whether the decision will be appealed. It would be inappropriate for the ministry to comment on a matter before the courts.”

Taiga Building products sent CTV News this statement:

“The company believes that the court made the right decision. Safety is a top priority at our company. We continue to extend our deepest sympathies to the family. We will not be providing any further comment on this matter.”

As for Bolger’s family, they said life without him is not easy.

“She misses him very, very much,” Carylyn Bolger said of Charon.

“We all do.”

Read the full decision here.

-- With Files from Amanda Hicks