A small, family owned and operated custom cabinet business was
fined $75,000 plus the Victim Fine Surcharge of $11,250 after
pleading guilty to failing to ensure, as far as reasonably
practicable, the health and safety of a worker. The charges stemmed
from a workplace incident in which a worker had slipped and caught
his hand on a piece of machinery. The machine's pressure
sensitive mat safeguard that would have shut down the machine had
been bypassed. It had been damaged approximately 3 years earlier
but the employer chose not to replace it.
The impact with the machine caused the worker's flesh to be
peeled back and he also sustained a broken wrist. The injured
worker had been trained to operate the machine and was aware of its
safety features, including the fact that the safety mat was not
The Court noted that the primary function of sentencing for
regulatory breaches was deterrence; however, sentencing was still
an individualized process requiring that all factors be considered,
not just deterrence. The relevant factors included the financial
circumstances of the corporate defendant. In the Judge's view,
the larger the corporation, the larger the fine. Conversely, when
sentencing smaller corporations with more restrictive financial
viability, the Court should apply a sentence that reflects that
situation while still deterring offenders in similar circumstances
from committing similar offences.
The other factors considered by the Court in its sentencing
The employer had no previous safety
The employer properly trained its
employees and had regular safety training sessions;
The employer pled guilty, was
remorseful and cooperative;
The employer recognized that it was
accountable and an officer had been present in court during the
The injuries sustained were at the
lower end of the severity continuum;
Although a fine of up to $100,000 (as
suggested by the Crown) would not devastate the employer, it would
certainly impose a severe sting on the employer; and
While the employer was negligent in
not repairing the safety mat, its conduct did not constitute gross
In light of these factors, the Court considered the Crown's
suggested amount of $100,000 to be too high. The Court determined
that a fine of $75,000 was appropriate as that was a substantial
and significant amount that would not be viewed as a slap on the
wrist. It would be clearly felt by the employer and would serve as
a warning for other similar offenders in similar 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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