Canada: Skyrocketing Workplace Safety Violation Fines Becoming A Deterrent

Last Updated: December 30 2013
Article by Howard Levitt

Bangladesh is not the only place with serious worker safety issues: Recently, I have been involved in several cases where clients have found themselves in difficult straits as result of having cut corners. The skimping resulted in employee injuries — in one case, a death. The lesson: don't balk at the sticker price of keeping your workplace safe. The alternative is far more costly.

Following a work injury, two things happen: The Ministry of Labour and the police (in some cases) conduct an investigation. This team dissects what took place; if they find an iota of evidence that the accident was the employer's fault, it could be charged under both the Occupational Health and Safety Act (OHSA) and the Criminal Code.

The fines are skyrocketing: Corporations that are charged face up to $500,000 for each violation under the OHSA. If charged criminally, there is no limit on the fine. The judge will care little that you paid under the OHSA, you could also go to jail. Attempting to argue double jeopardy will get you nowhere. You could be one of the unlucky few dinged twice for the same incident by two different judges.

It would do all employers and their managers well to read the recent court decisions; the lessons on employee safety are unequivocal and severe.

In Vale Canada Ltd., a fine of $1.05-million (the highest ever) was imposed under the OHSA.  The Toronto-based company operated an underground mine. Two workers were transferring broken rock and ore down a level through a transfer gate. To operate this gate, they had to position themselves in front of it, 3,000 feet below the surface.  It was a recipe for disaster; the run of rock and ore erupted through the transfer gate. One worker was buried immediately and the other died from multiple blunt force trauma.

Why did this material erupt through the transfer gate and whose fault was it? The Ministry of Labour (the OHSA guys) found there had been a hang-up of wet material in the ore pass because Vale did not deal with water issues in the mine. Previous convictions did not assist Vale's lot.

The sizable fine was intended to hurt and was a punishment for an avoidable tragedy and the miserly attempts by the employer to keep its employees out of harm's way.

In the case of R. vs. Metron Construction Corp., Metron was charged under the Criminal Code on top of the OHSA charges, which were of no concern to the police. Three workers and a site supervisor plunged to their deaths when a swing stage collapsed as it descended from the exterior of the fourteenth floor of a high-rise construction site. Two others were seriously and permanently injured.

Metron was fined $750,000  after the crown appealed the initial conviction under the Criminal Code on the basis it was too low. A trial judge should be concerned about whether the punishment fits the crime not what the OHSA fine range is, the Crown noted. What is notable is this fine was three times the profit in Metron's last profitable year.

Given the judicial test, such a charge could be an employer's death knell. My job starts with defending my client against the specific allegations, but continues long after the case is closed, working with the employer to develop reforms to improve worker safety at their workplace.

Generally, I advise employers cases such as these are a warning about what could happen if employee safety is taken lightly; workplace injuries can't be seen as a "cost of doing business."

Some tips:

— If you are guilty, apologize quickly.

— Routinely examine workplace conditions to ensure they conform to applicable OHSA standards and are generally impregnable;

— Make sure employees have and use safe tools and equipment and properly maintain this equipment. Monitor this for compliance.

— Provide safety training in a language and vocabulary workers can understand; and

— Ensure you post (at visible locations) a directive informing employees of their rights and responsibilities.

This article originally appeared in the Financial Post.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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