A sentence of imprisonment for convictions under the
Occupational Health and Safety Act ("OHSA") is
rare. However, two recent cases may signal that the Courts are
becoming more comfortable imposing jail terms. The maximum length
that can be imposed under the OHSA for imprisonment is one
In R v Roofing Medics Ltd., a decision released on
November 21, 2013, the owner of a roofing company was sentenced to
15 days imprisonment following the death of an employee. The worker
fell from a ladder and landed on a fence while working on a
residential roofing project. The owner initially advised the
Ministry of Labour and the police that the deceased had been
assisting as a friend to install roofing at the owner's
residence at the time of his death. One week after the incident,
the owner revealed the truth regarding the tragic workplace
The owner plead guilty for failing as a supervisor to ensure
that a worker works with the protective devices required by law and
to knowingly furnishing an inspector with false information. The
Court imposed a 10-day jail term for the fall protection charge and
a 5 day jail term for lying to the Ministry of Labour regarding the
Given the egregious facts, the imposition of a jail term is not
surprising. However, of note are the Court's comments regarding
the use of jail terms in future cases involving roofing companies.
Justice Nelson noted that the jail term was necessary to deter
others in the roofing industry from continuing to ignore fall
protection requirements. Further, the Court stated "if workers
continue to fall off roofs in contravention of fall arrest
regulations, supervisors can expect that jail sentences will be
longer and may well become the norm".
In R v JR Contracting Property Services et al., a
decision released on March 6, 2014,a supervisor was found guilty of
failing to provide adequate fall protection equipment to a worker
and sentenced to 45 days imprisonment. In addition, the company was
fined $75,000. The worker suffered paralysis after falling while
working on a residential roof and testified that he had not been
trained in the use of, nor had he been supplied with, any fall
Justice Hendriks applied the Regulatory Modernization
Act in concluding that a jail term was an appropriate
sentence. Section 15 of the Regulatory Modernization Act
permits a Court to consider a defendant's record of prior
provincial offences in determining an appropriate sentence.
Generally, a defendant's record regarding past violations of
the OHSA will be a factor in sentencing. However, the
Regulatory Modernization Act broadens the scope to allow
the Court to consider the prior offences under all provincial
The supervisor at issue in R v JR Contracting Property
Services et al. had multiple convictions under the
Environmental Protection Act with prior sentences
including fines and intermittent jail terms. The bulk of the fines
remained unpaid at the time of sentencing. In applying section 15
of the Regulatory Modernization Act, Justice Hendriks
concluded that the outstanding fines showed a "serious
disregard for public welfare statutes, and the consequences of her
It is yet to be seen whether these are isolated cases or whether
jail terms will become more common in cases involving serious
violations of the OHSA. Regardless, they serve as a reminder that
imprisonment is a viable form of sentencing. Further, companies
must be cognizant of the fact that their entire regulatory
conviction history may be a factor in sentencing as a result of the
Regulatory Modernization Act. Often parties plead guilty
to a regulatory charge as the cost of funding a defence is greater
then the penalty proposed by the prosecution. The ramifications of
having multiple regulatory convictions should be a consideration
when deciding whether to plead guilty rather than defending
provincial regulatory charges.
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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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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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