A recent decision from the Ontario Court of Appeal stands for
the principle that with respect to sentencing under the
Occupational Health and Safety Act (OHSA), you will not receive any
credit for doing something you were ordered to do.
In Ontario (Labour) v. Flex-N-Gate Canada Company,
2014 ONCA 53, the employer was convicted of two offences under
the OHSA for failing to properly transport metal sheets with a
forklift, which resulted in the injury to a worker's
foot. Following the accident, the Ministry of Labour issued
two orders involving the movement of material, which the employer
immediately complied with by changing its procedure. There was
no evidence presented that the employer went above and beyond what
the compliance order required.
At trial, the employer was convicted of two offences under the
OHSA and fined $25,000 for each offence. In determining the
sentence, the Justice of the Peace (JP) noted that although the
maximum fine for each offence was $500,000, the employer was not a
particularly large operation, the injury was not particularly
grave, nor did the accident occur as a result of the wilful
disregard of a known hazard. The JP also acknowledged that the
employer had taken steps "to establish a safe working
environment" prior to the accident occurring.
On appeal, the Ontario Court of Justice upheld the two
convictions and the $25,000 fine for each offence, but made the
fines "concurrent" meaning that the employer was only
required to pay $25,000 instead of $50,000. In reducing the
amount, the Court determined that the JP erred by giving little
weight to the corrective action of the employer following the
accident and stated that courts normally reward people for
"doing the right thing."
In allowing the appeal, and restoring the original sentence, the
Court of Appeal held that courts do not have the discretion to
treat an employer's post-offence compliance as a mitigating
factor in sentencing. This is because complying with an order
is not so much a matter of "doing the right thing" as it
is doing what is statutorily required and what should have been
done in the first place. Since the general philosophy of the
OHSA is the promotion of health and safety and the prevention of
accidents, the Court of Appeal stated that rewarding an employer
for taking corrective action may in fact reduce the incentive for
an employer to take preventative action before an accident
The Court of Appeal also held that there was no jurisdiction
under the OHSA or the Provincial Offences Act to issue
"concurrent fines" and stated that a court must impose a
separate fine for each count, while also ensuring that the overall
fine is appropriate.
In this decision, the Court of Appeal has made it very clear
that complying with an Inspector's order will not mitigate any
sentence imposed after prosecution. Therefore, employers should
continue to be proactive in their approach to health and safety and
continue to review their policies and procedures. That being
said, the Court of Appeal did note that corrective action that goes
beyond what is required in an Inspector's order may be taken
into account, as would steps taken by an employer to promote health
and safety before an accident occurs. Both of these would be
appropriate mitigating factors in sentencing as they are consistent
with the goal of accident prevention. In addition, to avoid
any further charges under the OHSA, timely compliance with an OHSA
order is a must.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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