Historically, penalties against individuals convicted of
offences under the Occupational Health and Safety Act
("OHSA") were limited to fines. Prior to 2000, there were
only one or two reported cases of jail time. In the last decade or
so, there still have been only a handful of cases, all of which had
what the courts describe as aggravating factors, including things
such as repeated stop-work orders.
In a court decision handed down on January 13, 2015, a furniture
company was fined $250,000 and two of the company's directors
were each sentenced to 25 days in jail. The directors pleaded
guilty, as did the company, NewMex Canada Inc.
In 2013, a worker in the Brampton warehouse was using a
forklift/platform to move merchandise. The equipment had been
modified and there was no guardrail around the platform. The worker
did not have fall protection gear. Sadly, the worker was found dead
from blunt force trauma.
The facts of this case could be said to be aggravating factors
because it appears the directors knew about the lack of training
and especially about the lack of fall arrest equipment. They took
no steps to correct the situation and multiple violations were
observed at the workplace.
Directors have an obligation to take reasonable care to see that
the company complies with the OHSA and its regulations. It is safe
to say that the more handson the director is, the more carefully a
court will look at what he or she knew or ought to have known and
what steps, if any, were taken by the director to ensure that the
company was in compliance or that any gaps were being addressed.
However, this is not to say that directors of larger corporations
are off the hook completely. Reporting through board committees, a
good grasp of health and safety policies and procedures, and the
allocation of sufficient resources to fund these policies and
procedures are the minimum requirements for due diligence.
Regardless of the size of the company or the size of the problem,
directors will continue to be a focus for investigation when an
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