A recent decision from the Ontario Court of Appeal stands for the principle that with respect to sentencing under the Occupational Health and Safety Act (OHSA), you will not receive any credit for doing something you were ordered to do.
In Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53, the employer was convicted of two offences under the OHSA for failing to properly transport metal sheets with a forklift, which resulted in the injury to a worker’s foot. Following the accident, the Ministry of Labour issued two orders involving the movement of material, which the employer immediately complied with by changing its procedure. There was no evidence presented that the employer went above and beyond what the compliance order required.
At trial, the employer was convicted of two offences under the OHSA and fined $25,000 for each offence. In determining the sentence, the Justice of the Peace (JP) noted that although the maximum fine for each offence was $500,000, the employer was not a particularly large operation, the injury was not particularly grave, nor did the accident occur as a result of the wilful disregard of a known hazard. The JP also acknowledged that the employer had taken steps “to establish a safe working environment” prior to the accident occurring.
On appeal, the Ontario Court of Justice upheld the two convictions and the $25,000 fine for each offence, but made the fines “concurrent” meaning that the employer was only required to pay $25,000 instead of $50,000. In reducing the amount, the Court determined that the JP erred by giving little weight to the corrective action of the employer following the accident and stated that courts normally reward people for “doing the right thing.”
In allowing the appeal, and restoring the original sentence, the Court of Appeal held that courts do not have the discretion to treat an employer’s post-offence compliance as a mitigating factor in sentencing. This is because complying with an order is not so much a matter of “doing the right thing” as it is doing what is statutorily required and what should have been done in the first place. Since the general philosophy of the OHSA is the promotion of health and safety and the prevention of accidents, the Court of Appeal stated that rewarding an employer for taking corrective action may in fact reduce the incentive for an employer to take preventative action before an accident occurs.
The Court of Appeal also held that there was no jurisdiction under the OHSA or the Provincial Offences Act to issue “concurrent fines” and stated that a court must impose a separate fine for each count, while also ensuring that the overall fine is appropriate.
In this decision, the Court of Appeal has made it very clear that complying with an Inspector’s order will not mitigate any sentence imposed after prosecution. Therefore, employers should continue to be proactive in their approach to health and safety and continue to review their policies and procedures. That being said, the Court of Appeal did note that corrective action that goes beyond what is required in an Inspector’s order may be taken into account, as would steps taken by an employer to promote health and safety before an accident occurs. Both of these would be appropriate mitigating factors in sentencing as they are consistent with the goal of accident prevention. In addition, to avoid any further charges under the OHSA, timely compliance with an OHSA order is a must.
By Matthew Demeo
Ontario Employer Advisor
Published with permission from McCarthy Tétrault LLP
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