Previously printed in the LexisNexis Labour Notes Newsletter.

Most employers are aware that the health and safety of their workers is one of the most important considerations on a worksite.  Across Canada, warnings have been issued to employers and their directors that accountability for workplace accidents and especially fatalities is increasing.  However, in the recent decision of Ontario (Labour) v. New Mex Canada Inc., 2019 ONCA 30, the Ontario Court of Appeal upheld a lower court's decision to overturn two jail sentences for directors following a workplace fatality.

In this case, an employee of New Mex Canada Inc. tragically fell off an elevated platform to his death when he was attempting to retrieve merchandise in a furniture warehouse.  The employee was not provided with fall protection equipment or safety work boots, and there was no protective railing on the order picker platform where he stood while working.  The employer knew in this case that the employee was subject to seizures while working and had fainted twice before.  The pathologist inferred the employee fell while unconscious and that a seizure had precipitated his fall.  The circumstances of the death were described by the sentencing judge as the "highest level of negligence".

The employer and two of its directors were charged and pleaded guilty to offences under the Ontario Occupational Health and Safety Act.  The company was fined $250,000 plus a 25 percent victim surcharge.  The directors were sentenced to 25 days in jail and 12 months of probation in part because of their "moral blameworthiness".  On a first appeal, the provincial appeal court reduced the employer's fine to $50,000 and substituted a $15,000 fine for the directors' jail sentences.  The Crown sought to restore the jail sentences initially imposed but the appeal was dismissed by the Ontario Court of Appeal.

In this case, the sentencing judge imposed the jail terms because there was a clear inability to pay a fine.  The Ontario Court of Appeal confirmed that the hardship associated with a fine is not a proper basis for imprisonment.  On that ground alone, the Court was prepared to set aside the jail sentences.

Of most interest in this case is that the Court of Appeal went on to make a finding that moral blameworthiness is a factor to consider when making sentencing decisions for regulatory offences.  This finding conflicts with prior decisions which confirmed that "moral blameworthiness" is not a relevant factor for sentencing in cases like this one.  In practice and going forward, this case means that sentencing judges will take an offender's level of culpability into account when arriving at a just sentence.  However, given the other policy considerations applicable to regulatory sentencing, moral blameworthiness can act only to increase a penalty; not reduce a sentence.

Although the Ontario Court of Appeal did not restore the jail sentences, the judicial statements made in this case will likely be used by prosecutors in future cases to argue that jail terms for directors are not only fit but appropriate.  This case acts as a reminder to employers and directors that their responsibility for the health and safety of all workers is serious and substantial.  Employers must be proactive and strive for continual improvement in their health and safety programs, and take all reasonable steps to prevent workplace injuries.  This case also highlights the need for employers and directors to consider their plans for responding to critical incidents, and also seriously consider retaining legal counsel to advise them with respect to incident investigations and potential liabilities arising out of those investigations.

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