Prosecutions under the OHSA: Aggravating and Mitigating Factors

While the significant monetary and other penalties associated with breaching the Occupational Health and Safety Act (the “OHSA”) are well publicized, substantially less coverage is dedicated to the process by which a Court determines the appropriateness of a penalty for a given defendant. This article discusses the ins and outs of the balancing process engaged in by the Courts in these circumstances, including an overview of mitigating and aggravating factors which affect the severity of a sentence.

(i) Relevant Provisions of the OHSA

The penalty provisions of the OHSA can be found at section 66:

Penalties

66. (1) Every person who contravenes or fails to comply with,

(a) a provision of this Act or the regulations;

(b) an order or requirement of an inspector or a Director; or

(c) an order of the Minister,

is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than twelve months, or to both.

(2) If a corporation is convicted of an offence under subsection (1), the maximum fine that may be imposed upon the corporation is $500,000 and not as provided therein.

The foregoing language provides a decision maker with substantial discretion to determine an appropriate sentence in any given case. Since the OHSA is silent on the issue of how to determine a defendant’s sentence in the event of a breach, Courts and decision makers turn to leading principles established by common law cases relating to this subject.

(ii) Common Law Principles

The leading common law decision on sentencing under the OHSA is R v Cotton Felts Ltd, [1982] 01 No 178 (Ont CA) (“Cotton Felts”). Although the Ontario Court of Appeal’s decision in Cotton Felts is now over two (2) decades old, Crown prosecutors in Ontario continue to cite it as a leading authority when negotiating plea bargains with defendants, and when making submissions to the Court on the appropriateness of a particular sentence.

In Cotton Felts, a worker lost his arm when it was caught in a roller and pulled into a machine, resulting in his arm being amputated below the elbow. The worker had failed to stop the machine before he attempted to clean it. Before this incident occurred, the employee had previously injured his thumb while working on a similar machine, which had also been operational while he was cleaning it.

An inspection by the Ministry of Labour (then the Department of Labour) resulted in fifty (50) work orders being issued against the employer, relating to the rectification of unsafe working conditions. The company was also charged under the OHSA’s Regulations, which provided that a machine could only be cleaned when any motion that would endanger a worker had stopped.

At trial, it was shown that management knew the machines were being cleaned without being turned off. The company subsequently pleaded guilty to the charges under the OHSA, and sentencing was adjourned to allow the company time to demonstrate that it could improve its health and safety at the plant. The company subsequently spent over $100,000 on health and safety improvements.

Upon returning to Court for sentencing, the Crown prosecutor recommended a fine in the range of $2,000-$3,000, while the company requested a more modest penalty because of its significant expenditures and “demonstrated” commitment to health and safety. However, the Court ignored both submissions, instead imposing a fine of $20,000 on the company. The Court emphasized the importance of “general deterrence”. At that time, the fine issued against the employer was significantly higher than other fines imposed for similar offences. The maximum fine permitted by the OHSA at that time was $25,000.

On appeal, the Court of Appeal upheld the trial judge’s sentencing decision, noting the importance of enforcing regulatory standards by general deterrence. The Court of Appeal confirmed that the amount of any penalty under the OHSA would be determined by a variety of considerations, including:

  • The size of the company involved;
  • The scope of the economic activity at issue;
  • The extent of actual and potential harm to the public;
  • The maximum penalty prescribed by statute.

The Court also emphasized that each case would have to be decided on its own merits, stating:

[…]     without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere license fee for illegal activity.

Subsequent case law under the OHSA has led to the identification and development of additional mitigating factors. Courts today will typically also consider:

  • The past health and safety record of the defendant individual / company (including previous convictions);
  • Demonstrated remorse;
  • Post-accident remedial actions which go “above and beyond” a Ministry of Labour Inspector’s order(s);
  • A defendant’s willingness to take educational courses on safety;
  • Etc.

By contrast to the foregoing considerations, common law jurisprudence under the OHSA has identified “aggravating factors” which are likely to increase the likelihood and severity of a penalty. Such aggravating factors include:

  • Previous record of convictions;
  • Continued instances of reckless or negligent behaviour;
  • Difficult or uncooperative attitude toward the Ministry of Labour, its Inspectors, or the Crown;
  • Lack of remorse;
  • Deliberate or willful disregard of Ministry of Labour Inspectors’ orders;
  • If the offence possesses quasi-criminal elements.

(iii) Recent Case Law

In R v New Mex Canada Inc, 2017 ONCJ 626 (CanLII) a decision recently issued by the Ontario Court of Justice, the Crown pursued a jail sentence against two (2) directors of a warehousing company when a worker fell to his death. The deceased employee was not protected by any of the requisite safeguards and harnesses required by the OHSA and its Regulations.

At trial, both directors of the defendant employer were sentenced to twenty-five (25) days in jail, while the corporation was fined a total of $125,000. Interestingly, the trial judge’s award permitted the directors to serve their sentences over a series of weekends, an arrangement that appears to be common in sentences of this type and duration.

The corporate defendant and both directors appealed their sentences, under section 116(1)(d) of the Provincial Offences Act, to the Ontario Court of Justice. The defendants sought a reduction in each the aforesaid sentences, arguing, inter alia, that the trial judge had failed to consider the defendants’ various mitigating factors before determining the appropriate sentence.

In its decision, the Ontario Court of Justice confirmed the Court of Appeal’s approach in Cotton Felts, stating that a strong fine was necessary and appropriate to deter both the actual defendant and the community generally from risking the health and safety of workers. That being said, the Ontario Court of Justice also confirmed that a strong fine would serve as a sufficient deterrent in respect of most convictions under the OHSA.

With respect to the issue of the jail time issued against the defendant directors, the Ontario Court of Justice held that incarceration for under the penalty provisions of the OHSA is to be treated as a “penalty of last resort”. The Court went on to consider the following mitigating factors, finding that they supported the directors’ argument against incarceration:

  • The directors had no prior convictions under the OHSA;
  • Their attitude toward the general health and safety of employees was initially inappropriate; however, they demonstrated genuine remorse after the incident, cooperated with the Ministry of Labour, and attempted to rectify health and safety deficiencies immediately.

As a result of the foregoing mitigating factors, the Court found that incarcerating the directors was “inappropriate” and excessive, finding instead that a significant fine would adequately serve the Crown’s purpose of deterrence. The Ontario Court of Justice varied the trial judge’s order, issuing the following direction:

  • The fine against the corporate defendant was reduced to $50,000;
  • The prison sentences issued against the directors were rescinded and substituted for individual fines of $15,000 respectively.

(iv) Comments and Concluding Remarks

Courts are required to consider all factors, both aggravating and mitigating, when determining the appropriateness of a sentence for any breach of the OHSA.

Mitigating and aggravating factors can result in significant increases, or decreases, of monetary fines against a corporate defendant. Corporate defendants must be aware that after an incident, the conduct and administration of a defendant employer’s workplace will be closely scrutinized as part of the Court’s sentencing analysis. Steps should be taken to avoid any further safety concerns at the workplace. Additionally, a defendant corporation that is facing prosecution under the OHSA is best advised to engage in honest, meaningful collaboration with the Ministry of Labour, its Inspectors, and the Crown, so as to reduce the likelihood and severity of monetary penalties.

With respect to individual defendants, our review of 2017 OHSA prosecutions confirms that jail sentences were issued in less than five (5) percent of cases. Imprisonment appears to be reserved for only the most egregious circumstances. Typically, such cases involve a serious workplace accident, coupled with other misconduct on the part of an individual defendant. Accordingly, in order to minimize the likelihood of a prison sentence, we recommend that individual defendants tread carefully, and avoid any sort of confrontation or dispute with the Ministry of Labour, its Inspectors, or the Crown.

Tushar Anandasagar is an associate lawyer at LeClair and Associates P.C. He specializes in Labour and Employment law, with a focus on Workplace Policy Development and Regulatory Compliance. For further information, please contact Tushar by email at tushar@leclairandassociates.ca.

Written by Tushar Anandasagar | Associate Lawyer at LeClair and Associates


 

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