An employer's corrective action taken after an accident did not entitle it to a reduced fine under the Occupational Health and Safety Act because the action should have been taken – and was legally-required – before the accident, the Ontario Court of Appeal has held.

The employer, Flex N-Gate Canada Company, an auto parts producer, was charged with offences under the Occupational Health and Safety Act after a worker broke several bones in her foot when a bundle of metal sheets slipped off a forklift and fell to the floor.

After a trial, the company was convicted of failing to ensure that material was moved in a safe manner and failing to properly train workers. The presiding Justice of the Peace imposed a fine of $25,000.00 for each offence, for a total of $50,000.00. A judge of the Ontario Court of Justice, on appeal, reduced the total fine to $25,000.00 because of the company's corrective action after the accident. The corrective action was in response to compliance orders made by a Ministry of Labour inspector against the company. The appeal judge reduced the total fine by making the two fines "concurrent".

The Ontario Court of Appeal restored the original fine of $50,000.00. It decided that the post-accident corrective action simply brought the company into compliance with the Occupational Health and Safety Act – something that the company was already required to do before the accident. The court stated, "Rewarding an employer for taking corrective action only in response to an inspector's order reduces an employer's incentive to take this action before an accident occurs" and also reduces the "deterrent effect" of fines in Occupational Health and Safety Act cases.

Fines may be reduced, the appeal court added, due to an employer's corrective action beyond what the Occupational Health and Safety Act requires. Also, an employer's actions taken before the accident are relevant in setting the amount of the fine.

Lastly, the appeal court stated that "concurrent fines" are not permitted under the Occupational Health and Safety Act. Because the $50,000.00 total fine imposed by the justice of the peace was "fit", that fine was reinstated.

In summary, employers will not be rewarded for fixing safety problems after an accident, unless the fix is above-and-beyond what the Occupational Health and Safety Act already requires.

Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53 (CanLII)

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