In its recent decision of R. v. Flex-N-Gate Canada
Company, 2014 ONCA 53, the
Ontario Court of Appeal ruled that post-accident compliance with
mandatory orders from the Ministry of Labour should not mitigate
fines against employers for breach of the Occupational Health
and Safety Act ("OHSA"), and that there is
no jurisdiction for a Court to make multiple fines for multiple
offences concurrent under the OHSA.
The company, Flex-N-Gate, produces vehicle bumpers. In 2004, an
accident occurred at the company's plant in which a stack of
sheet metal fell from a forklift, striking an employee on the foot
and causing significant injuries. The Ministry of Labour
investigated the accident and issued two compliance orders: first
that the company comply with the terms of the OHSA and its
Regulations pertaining to the safe movement of material; and
secondly that the company be prohibited from using the equipment
involved in the incident until it complied with the first order.
The company immediately complied with the orders.
At trial, the Provincial Court held that the company was guilty
of two offences under the OHSA: failing to ensure that
material was moved in a manner that did not endanger the safety of
a worker; and failing to provide information, instruction, and
supervision to protect the health and safety of workers. The Court
imposed a fine of $50,000, being $25,000 for each offence.
The Company appealed the decision to the Ontario Court of
Justice. That Court decided it would not disturb the decision of
the lower Court on the conviction, or the value of the fines.
However, the Court decided that the company's immediate
compliance with the Ministry of Labour's Orders prior to
hearing was a mitigating factor in the company's favour. The
Court therefore held that the fines ought to be paid concurrently,
meaning that Flex-N-Gate would pay a total of $25,000 in fines,
rather than the original $50,000.
The Crown was granted leave to appeal to the Ontario Court of
Appeal on two issues: 1) Whether compliance with an order can be a
mitigating factor in determining value of a fine; and 2) whether
the Court could make the fines concurrent. The Court of Appeal
granted the Crown's appeal on both issues.
The Court of Appeal decided that an employer's corrective
action taken in response to an investigator's order should not
mitigate the sentence. It stated that rewarding the company for
complying with post-accident orders required by law would be a
disincentive for other employers to take corrective action before
an accident occurs. It would also be harder to carry out the
deterrent purpose of OHSA penalties if a guilty party
could simply comply with an order after they are caught breaching
the OHSA, then expect a mitigated sentence after
The Court did state however that corrective action taken by a
company could be a mitigating factor if it went above and beyond
the scope of a Ministry of Labour compliance order, or if it was
undertaken prior to an accident.
On the second question before it, the Court of Appeal reviewed
its prior case law and determined that only custodial sentences
could be concurrent, and not fines. The lower Court had no
jurisdiction to make the two $25,000 fines concurrent, and so the
Court of Appeal reinstated the Provincial Court's sentence of
two $25,000 fines.
There are two points that employers should take from this
decision. First, if you want to get into the good graces of the
Courts and the Ministry of Labour, you will have to do more than
comply with orders made pursuant to the OHSA. Going above
and beyond the statutory requirements before an accident occurs is
the best way to mitigate any potential sentence against your
company in the event of a health and safety conviction. Secondly,
do not expect that the Courts will deviate from their history of
handing down multiple fines for each of multiple convictions under
Of course your first, and best line of defence, is due diligence
and compliance with the law. The lawyers at CCPartners are
experienced with helping employers understand and comply with their
obligations and responsibilities under the Occupational Health
and Safety Act.
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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