Executive Summary: Key Legal and Evidentiary Issues

• Defendant Roxboro Excavation inc. sought access to a deceased worker's medical file through an O'Connor-type disclosure application.
   
• Prosecution CNESST opposed the request, citing the worker's privacy rights and lack of relevance to the pending charges.
   
• Charges against Roxboro concern inadequate site supervision and non-compliant traffic-safety measures, not the worker's death itself.
   
• Court applied the two-step disclosure framework from R. v. O'Connor and R. v. Mills to assess likely relevance and the interests of justice.
   
• Evidence of the worker's intoxication, financial distress, and mental state was already known to the parties independent of any medical record.
   
• Tribunal dismissed the application after concluding the likely-relevance and probity thresholds had not been met.

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Facts of the case

Roxboro Excavation inc. is the general contractor of a construction site on which a worker, employed by a sub-subcontractor, was fatally struck by a truck performing a backing maneuver. Material disclosed to Roxboro, including a coroner's report, indicated that the worker was heavily intoxicated at the time of the accident, was experiencing suicidal ideation, was in debt, was facing eviction from his residence, and was subject to various pending legal proceedings. Roxboro is not prosecuted for the worker's death; the charges instead relate to an alleged absence of a flagger and a designated backing area on the site. Roxboro brought an O'Connor-type application seeking production of the worker's medical file, hoping it might support a defence grounded in the worker's alcoholism, drug dependency, and psychological fragility. The CNESST, as prosecuting party, opposed the application on both privacy and relevance grounds.

Policy and legislative provisions at issue

Roxboro invoked its right to full and complete defence and referred to section 237, arguing that if the worker's own conduct amounted to gross negligence, this could support an exculpatory defence when combined with the other circumstances of the accident. The application was governed by the two-step disclosure framework addressed in R. v. O'Connor and R. v. Mills, centred on section 278.5, under which an applicant must first show that the records sought are likely relevant and that their disclosure to the judge would serve the interests of justice before the court proceeds to consider whether disclosure to the accused is warranted.

Reasoning and analysis

The court accepted the CNESST's characterization of the charges as concerning Roxboro's alleged failure to provide a flagger and a backing area, not the worker's death. Drawing on the reasoning of Justice Bisson in CNESST v. Insta-toile inc. and Justice Kouri in the Béton Fortin matter, the court held that a worker's contributory fault, whether tied to negligence, intoxication, or health, does not excuse an employer from its ongoing duty to maintain a safe workplace. It noted that the worker's intoxication at the time of the accident was already established and could be raised by the defence at trial without recourse to the medical file. Referring also to CSST v. TMR inc., where evidence of a worker's blood alcohol level did not point to disorderly conduct undermining job performance, the court found no indication that further details about the worker's alcoholism, drug dependency, or suicidal ideation would meaningfully assist the defence, given that the charges concern workplace supervision and safety measures rather than the worker's own conduct or state of mind. On this basis, the court concluded that Roxboro had not demonstrated likely relevance or shown that disclosure would serve the interests of justice, making it unnecessary to proceed to the second step of the analysis.

Ruling and overall outcome

The Tribunal dismissed Roxboro Excavation inc.'s application for disclosure of the worker's medical file, ruling in favour of the CNESST as the successful party. The decision resolved only the disclosure application; the judgment does not grant, order, or discuss any monetary award, costs, or damages, as the underlying penal prosecution has not yet been determined on its merits.