When a client has been charged under the Occupational Health and Safety Act ("OHSA") many times we are asked, what is the down side to pleading guilty and having a charge under the OHSA?
The OHSA is one of a number of provincial statutes in Ontario. The Regulatory Modernization Act, 2007 was enacted by the Ontario government to allow information sharing among the different Ontario Ministries and Regulatory Agencies. On March 6, 2014, it was also used as part of the sentencing hearing for one of the individuals charged and convicted as a supervisor under the OHSA. Although the supervisor did not have any prior convictions under the OHSA, she did have prior convictions under other provincial legislation. In the matter of R. v. J. R. Contracting Property Services the supervisor was found guilty of failing as a supervisor to take every reasonable precaution to protect a worker, in particular, failing to provide an adequate form of fall protection to a worker who was exposed to a hazard of falling more than three meters.
At the sentencing hearing, the Crown requested that the Justice of the Peace consider section 15 of The Regulatory Modernization Act, 2007. Section 15 states that where the prosecution is of the opinion that a previous conviction is relevant to the determination of the appropriate penalty for the current conviction he or she may request that the Court consider the previous conviction to be an aggravating factor. The supervisor had past convictions under the Environmental Protection Act, as well as intermittent terms of imprisonment and substantial fines. The court considered her prior record of offences in totality, along with the fact that there was non-compliance with court orders of unpaid fines. The Court agreed with the prosecutor, that even though the supervisor had elder care responsibility for her mother, only a term of imprisonment would fulfill the sentencing goal of deterrence, to her specifically, and to the community generally. The court ordered that the supervisor be subject to 45 days of continuous incarceration.
Obviously in this case, the supervisor's past convictions was an aggravating factor which resulted in a harsher OHSA penalty, even though there were no previous OHSA convictions.
The importance of paying fines can also not be overlooked here. Where a company is unable to pay a fine within the time period imposed by the court, and if regular payments are being made, the court will consider a request to extend the time to pay the fine. At CCPartners we provide a full range of options to clients who need to consider whether to put forward a defence to charges under the OHSA or negotiate a resolution.
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