In the 2012 Metron Construction and Swartz decisions concerning the deaths of four workers and serious injury of a fifth worker, the Ontario Court of Justice imposed substantial fines but no jail time for the company’s president under either provincial or federal legislation. More recently, however, in R. v. Roofing Medics Ltd., which involved the fatality of one worker, the court did impose jail time on the owner of the company. Employers should take note. It’s not yet clear if the Roofing Medics case will influence future decisions, but the Ontario Court of Justice has at least shown that it is willing to impose jail time on employers that do not comply with health and safety legislation.
In Metron Construction and Swartz, the court fined the company $230,000 under the Criminal Code, and fined the president and sole director of the company more than $110,000 under Ontario’s Occupational Health and Safety Act (OHSA). Others believed that fines were appropriate. Others believed that the fine was just not enough given that four workers died and one was seriously injured. In fact, some believed that this case could have been made into an example showing that employers could actually be ordered to do significant jail time following series workplace fatalities.
The court did not miss its opportunity in Roofing Medics (in PDF). In that case, a worker fell from a ladder while working on a residential roofing project for his employer. Unfortunately, he landed on a fence and ultimately died shortly after getting to the hospital. The worker was wearing a harness and a lanyard, but the lanyard was not attached to anything.
The owner was acting as workplace supervisor at the time of the incident and subsequently lied to the police. He stated that at the time of the fall, the worker had been helping out a friend at his home installing roofing. It was not until seven days after the accident that the owner finally told the Ministry of Labour the truth.
Consequently, the company was guilty of two offences under the OHSA, including failing to comply with the requirement that a fall-arrest system be in place, and failing to notify and send a report to the director regarding the death of the worker within 48 hours. Additionally, the owner of the company was found guilty of two offences, including failing as supervisor to ensure the worker used a fall-arrest system as required and furnishing an inspector with false information.
The Crown asked the court that the company be fined about $100,000 and that the owner be sentenced to jail time in the amount of 45 days. On the other hand, the company asked that the fines not exceed $42,500 based on ability to pay, and that there be a fine imposed instead of jail time for the owner.
After considering the mitigating factors (e.g., it was a first-time offence and the employer had indicated remorse by entering a guilty plea), and also the aggravating factors (e.g., the impact on the worker’s family, the owner’s lies and a previous warning from an inspector), the court decided that it was crucial to keep deterrence front of mind in sentencing: when reviewing roofing-related incidents and injuries, it is common to find that fall-arrest systems were used incorrectly or lacking entirely. It is equally clear that these incidents can be mitigated by using fall protection equipment and procedures correctly.
Therefore, the owner was not simply given a fine: he was sentenced to jail time in the amount of five days. Further, the company was fined $47,500 for the fall-arrest offence, and $2,500 for failing to notify.
The court stated:
The major reason a jail sentence is necessary for [the owner] is to deter others from ignoring the legislated fall protection requirements. Others in the industry must pause to consider that each and every time they embark on a roofing project they may go to jail if one of their employees does not use fall protection gear. It is unacceptable for any roofer to be injured or to die as a result of a fall off a roof. These injuries and deaths can be prevented. Since the industry has not been able to accomplish prevention to date, it is appropriate for the Court to send a message that offenders will be dealt with harshly.”
What is the message for employers?
One may question what the difference was between Roofing Medics and Metron Construction. Both cases happened in Ontario and the same court made the decisions. Using the same provincial health and safety legislation, why did one case lead only to fines but another case lead to fines plus jail time for the owner of the company?
The recent decision in Roofing Medics could represent a shift in judicial decision-making, suggesting that workplace fatalities will be taken more seriously and result in more serious consequences when employers do not comply with provincial health and safety legislation.
The key message in the most recent case appeared to be that of deterrence. Thus, the best suggestion that can be made is that employers always follow occupational health and safety regulations for otherwise they may be on the hook for increasingly severe penalties, including jail time.
Furthermore, on December 19, 2013, the Ontario Ministry of Labour released its new safety training standard for working at heights, called The Working at Heights Training Program Standard. Although initially voluntary, it will ultimately become mandatory for workplaces in the construction sector and workplaces carrying on construction activity by the summer of 2014, and is expected to expand to all sectors. Employers must ensure that they meet the training requirements in the Occupational Health and Safety Act and its regulations. For more information on the standard read this HRinfodesk article New safety training standard for working at heights (login required).
Christina Catenacci
First Reference Editor
Additionally, find Christina at https://www.christinacatenacci.com/
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