The Ontario Court of Appeal has ruled in Ontario (Labour) v Flex-N-Gate Canada
Company that post-accident compliance should not be
considered a mitigating factor in sentencing for a conviction under
the Occupational Health and Safety Act
An employee was injured in a workplace accident when metal
sheets fell off of a forklift and struck the employee's foot,
causing several broken bones. Following the MOL's investigation
into the accident, an MOL inspector issued two compliance orders.
The company immediately complied with both MOL orders.
The employer was ultimately convicted of two offences under the
OHSA and a Justice of the Peace sentenced the company to a
fine of $50,000 ($25,000 for each offence). The company appealed
the sentence, and the Ontario Court of Justice reduced the
company's sentence to $25,000. In its reasons, the Court
considered it a mitigating factor that the employer had complied
with the MOL's orders after the accident.
The MOL brought an appeal to the Ontario Court of Appeal. In a
unanimous judgment, the Court rejected the Ontario Court of
Justice's reasoning that post-accident compliance could reduce
an employer's sentence. The Court held that rewarding
compliance with an inspector's orders undermined the goal of
accident prevention and reduced the deterrent effect of sentences
for violations of the OHSA. Moreover, it was noted that failure to
comply with a post-accident order is itself an offence under the
OHSA. The Court allowed the appeal and reinstated the two
$25,000 fines that the Justice of the Peace had originally
In light of the Ontario Court of Appeal's decision,
employers must now recognize that complying with the MOL's
post-accident orders will not have the potential to reduce a
sentence for violating the OHSA. However, the decision
stated that going above and beyond what is required in the
MOL's compliance order could be taken into account in
sentencing. As well, the Court held that action taken by a company
before an accident could be considered in the mitigation of a
The decision emphasizes the importance of maintaining a
proactive approach to health and safety in the workplace. Clear
health and safety policies and well-communicated best practices are
critical in preventing workplace accidents. In addition to
complying with all occupational health and safety legislation,
regulations, and mandated training, employers should continuously
communicate the importance of workplace health and safety to their
employees. Actions taken to address gaps in the health and safety
system of a company prior to an accident should be documented and
will be evidence to use towards mitigation of any eventual
sentences a company may face. Once an order is issued by the MOL
however, compliance with such orders will not be useful for that
purpose. In light of the reasoning of the Ontario Court of Appeal
there is benefit to employers being proactive in managing health
and safety in the workplace before an accident occurs.
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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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