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Second OHSA conviction gets construction employer jailed for 30 days

Another Ontario employer has been jailed for violating the Occupational Health and Safety Act. As in some previous OHSA jail-time cases, this one involved a worker falling off a roof.

For our blog posts on some previous OHSA jail-time cases, click here.

The worker was working on the roof of a construction project. He was wearing a fall-arrest harness that was attached to a lanyard, which was connected to a lifeline. The worker detached the lanyard from the lifeline and moved toward a different lifeline at the peak of the roof. He slipped and fell almost 30 feet to the ground and was seriously injured.

The employer, an individual, pleaded guilty to failing to ensure that the worker was attached to a travel restraint system at all times.  The court sentenced the employer to 30 days in jail.

Importantly, this was the employer’s second conviction under the OHSA.  In 2013, another worker employed by the employer died after he fell 26 feet to the ground. The employer was fined $15,000 in that case.

For years, jail terms were very rare in OHSA matters.  The courts appear to be getting more comfortable with imposing jail time for serious OHSA violations by repeat offenders.

The MOL press release for this case can be found here.

Second OHSA conviction gets construction employer jailed for 30 days

Nova Scotia roofer jailed for 4 months after tenth OHSA conviction

Our blog post of May 29th reported that an Ontario roofer has been sent to jail for one day for an OHSA violation. CBC news has reported that a Nova Scotia judge has sent a roofer in that province to jail for four months after being found guilty for the tenth time of Occupational Health and Safety Act violations – nine of them for failing to ensure that workers used proper fall protection.

According to the CBC, this latest violation occurred only three months after the roofer was sentenced to serve 15 days in jail for previous violations of the OHSA.

This is one of the longest jail terms in Canadian history for violating workplace safety legislation.

CBC reports that the roofer is also required to report all jobs to the Nova Scotia Department of Labour and Education for two years.

The CBC article may be found here.

Nova Scotia roofer jailed for 4 months after tenth OHSA conviction

Corporate director jailed for one day, fined $10,000 for OHSA violation; he had been fined twice before

A director of a roofing company who had two previous convictions for violating the Ontario Occupational Health and Safety Act has been sent to jail for one day after he was convicted for the third time.  He was also fined $10,000 for the same offence.  Jail terms, while still rare, are becoming more common in Ontario for OHSA violations.

The director was charged personally as an employer for failing to ensure that a worker was adequately protected from falling, by use of a travel restraint system, a fall arrest system or a safety net.  A Ministry of Labour inspector had caught the worker working at a height of about 26 feet without fall protection.

The director had been convicted two years earlier for the same offence and fined $4,500, and had also been convicted four years earlier for the same offence and fined $2,000.

The MOL’s press release can be read here.

 

Corporate director jailed for one day, fined $10,000 for OHSA violation; he had been fined twice before

Contractor jailed for 30 days, fined $45,000 after serious asbestos violations

Every now and then a case comes along to remind us that violators of occupational health and safety legislation can be sent to jail.

Mind you, this case involved not only serious safety violations, but also deceit and illegal dumping.

An Ontario contractor has been jailed for 30 days and fined $45,000, after a successful prosecution by the Ontario Ministry of Labour, for violating the asbestos regulation under the Ontario Occupational Health and Safety Act.

According to the Ministry of Labour court bulletin, on two separate dates in 2014, the contractor, along with at least one of his workers, went to a residential home to remove asbestos-containing insulation from the attic.

The contractor did not separate and seal off the work area; did not have any decontamination facilities in place; did not identify the work area with any signs warning of an asbestos dust hazard; did not wear protective clothing; and he and his worker wore respirators that were not fit-tested and on which they were not trained. Further, the contractor did not notify the Ministry of Labour of the asbestos removal work as required by the asbestos regulation. The contractor had told the homeowner that the removal work was being done in accordance with the asbestos regulation, and that the contractor was certified to do the work, but neither was true. The homeowner and two other people were in the home while the work was being done.

The Ministry of Labour, Ministry of Environment and police got involved when someone reported that vacuum bags with asbestos-containing insulation had been illegally dumped on private property.

After a trial, the contractor was found guilty on nine charges under the Occupational Health and Safety Act and Regulation 278/05 (“Designated Substance – Asbestos on Construction Projects and in Buildings and Repair Operations”) under the OHSA.  The court stated that this was a case of clear deceit and misrepresentation by the contractor and total disregard for the health and safety of workers and the public.

The court then imposed the thirty-day jail sentence and $45,000 fine.

The Ministry of Labour’s court bulletin may be accessed here.

Contractor jailed for 30 days, fined $45,000 after serious asbestos violations

Two company directors jailed 25 days after worker dies, no safety training provided

Rarely are senior corporate officials jailed for health and safety offences in Canada.  But recently, two company directors of an importer and retailer of furniture and accessories, were jailed for 25 days after a worker died from a fall.

The Ontario Ministry of Labour says, in its press release, that the worker was moving merchandise at the Brampton workplace of New Mex Canada Inc., using a combination forklift /operator-up platform called an order picker. The order picker had been modified to add a platform supported by the forks that was tack-welded to the operator platform. There was no guardrail around the added platform. The worker was not wearing fall protection.  The worker was pronounced dead after he was found on the floor.  The cause of death was  determined to be blunt force trauma to the head.

The Ministry of Labour states that its investigation found that there had been no health and safety training provided to warehouse workers, and workers said that they were not provided with fall protection equipment.

The two corporate directors were charged with failing as directors of New Mex Canada Inc. to take reasonable care that the corporation complied with the Occupational Health and Safety Act and with Regulation 851 (Industrial Establishments). Both pleaded guilty.   Both received a 25-day jail sentence, to be served on weekends.  Also, both were ordered to take a health and safety course within 60 days.

Further, the employer, New Mex Canada Inc. was fined $250,000.  It pleaded guilty to failing to provide training and supervision to a worker regarding fall protection and/or working from a height, and failing to ensure the safety measures required by law were carried out.

The Ministry of Labour’s press release can be found here.

Two company directors jailed 25 days after worker dies, no safety training provided

Supervisor Jailed 45 days for Occupational Health and Safety Act Violation

An Ontario supervisor has been jailed for 45 days after a worker fell off a roof and suffered permanent paralysis.  Are courts growing increasingly comfortable jailing supervisors for serious safety violations?

We wrote about this case in May 2013 after the court found the company, the supervisor and another company representative guilty of charges under the Occupational Health and Safety Act.  The court has now imposed its sentence.

According to the Ministry of Labour’s press release, the worker worked for a company engaged in “garbage removal and hauling”.  He was removing shingles from a roof, and fell off the roof after tossing loose shingles toward a bin.  The worker said that he had not been trained in the use of fall protection equipment, nor was any such equipment provided in the company-supplied truck used for transportation to and from the job site.  As well, the worker said that the company’s practice was to pay cash for their work, and that he worked on an on-call basis. The worker identified J.R. Contracting Property Services as the employer and one Teisha  Lootawan as the supervisor.

The court determined that J.R. Contracting Property Services was the “employer”. The court also determined that Lootawan was a supervisor under the OHSA.  Lootawan had failed as a supervisor to ensure that a worker wore protective devices as required by law, and failed as a supervisor to take the reasonable precaution of ensuring that an adequate form of fall protection was provided where a worker was exposed to a fall hazard of more than three metres. 

The court sent Lootawan to jail for 45 days, imposed a $75,000.00 fine on the company, and fined the other company representative $2,000.00 for obstructing a Ministry of Labour inspector by refusing to answer any of the inspector’s questions.

The Ministry of Labour’s press release may be accessed here.

Supervisor Jailed 45 days for Occupational Health and Safety Act Violation

Supervisor Jailed under OHSA after Lying to MOL Inspector, Police

In what is still a relatively rare occurrence, an Ontario supervisor has been sent to jail for violating the Occupational Health and Safety Act after a worker died.  Lying to the police and Ministry of Labour inspector did not help.

Paul Markewycz was the owner and operator of a company called Roofing Medics Ltd.  In 2011, a worker who was installing roofing membrane from a ladder fell approximately 6 metres and struck a fence.  The worker was wearing fall protection equipment but it was not connected to anything when he fell. The worker was pronounced dead shortly afterwards.

Markewycz told the police that the worker fell at the Markewycz home while helping to install roof vents.  A coroner told a Ministry of Labour inspector about the incident.  The inspector attended at the Markewycz home for an investigation.  A week after the accident, Markewycz and his lawyer met with Ministry of Labour inspectors and said that the incident had taken place in Toronto and not at his home. He also told the inspectors that worker had been employed with Roofing Medics, which had not reported the accident to the Ministry of Labour as required by the Occupational Health and Safety Act.

Markewicz was charged with and pleaded guilty to failing as a supervisor to ensure that a worker works with the required protective devices, and to knowingly giving false information to an inspector. He was jailed for 15 days.  Roofing Medics was fined $50,000.00 for two violations including failing to notify an inspector of the accident immediately and in writing within 48 hours.

This case illustrates how the Ministry of Labour will seek severe penalties against those who lie to inspectors.  Honesty is, as our parents told us, the best policy.

The Ministry of Labour press release may be accessed here.

 

Supervisor Jailed under OHSA after Lying to MOL Inspector, Police

Three days in jail for owner of roofing business after trying to deceive MOL inspector

The owner of a roofing business has landed in jail for three days after trying to trick a Ministry of Labour inspector following a workplace accident.

Three workers were working on a residential roofing project but the owner did not make fall protection equipment available to them.

According to the MOL press release, after one worker fell 18 feet and injured himself, the owner directed another worker to go up on the roof and set up lifelines and fall protection equipment in order to deceive the MOL inspector.

The owner pleaded guilty to two OHSA offences: attempting to obstruct and interfere with an inspector, and failing to ensure that a worker was protected by a method of fall protection.

The court jailed the owner for three days on the obstruction/interference charge and imposed a $5,000.00 fine on the other charge.

Although for many years there were very few jail terms imposed by courts for OHSA violations, the courts are increasingly willing to impose jail terms for serious violations including attempting to deceive MOL inspectors.

The Ministry of Labour’s press release on this case may be accessed here.

Three days in jail for owner of roofing business after trying to deceive MOL inspector

Previous Environmental Convictions Considered in Jailing of Supervisor for OHSA Offences: Court’s Reasons now Available

A supervisor’s previous violations of the Environmental Protection Act, and failure to pay more than $50,000 in fines for those violations, were a factor in the court’s decision to send her to jail for Occupational Health and Safety Act violations, the court’s reasons show.

In our post on March 11th, we wrote that the court jailed a supervisor for 45 days for violations of the Occupational Health and Safety Act. 

The Ministry of Labour prosecutor, in the supervisor’s sentencing hearing for the OHSA violations, provided proof that the supervisor had previously been convicted of 6 offences under the Environmental Protection Act, including submitting false or misleading information to the Ministry of Environment.  She had previously been jailed for EPA offences, and had more than $50,000 in unpaid fines.

A rather obscure but important Ontario statute, the Regulatory Modernization Act, 2007, permits the court to consider previous convictions under another Act when deciding what fine, or length of prison term, a person should receive for violation of a regulatory statute such as the Occupational Health and Safety Act.

The court stated:

“Given her troubling history with lack of compliance with prior court prior orders, the evidence before me that her convictions stem from her ongoing work in the trash removal business where she continues to flout various regulatory standards, and her lack of expression of any remorse for an accident that left a young man permanently paralyzed and fraught with pain, I accept the Crown’s submission that only a term of imprisonment would fulfill the sentencing goal of deterrence, both general and specific.  It would also further the sentencing goal of denunciation, given her pattern of behaviour. Regrettably, I do not foresee any hope of rehabilitation of Ms. Lootawan, given her antecedents.”

This case demonstrates that a supervisor’s entire regulatory conviction history – including convictions under statutes other than the Occupational Health and Safety Act – can be given significant weight when a court decides the supervisor’s sentence for OHSA violations.  A history of violations of the law can, in extreme cases such as this one, land a supervisor in jail.

The court’s reasons are available here.

Previous Environmental Convictions Considered in Jailing of Supervisor for OHSA Offences: Court’s Reasons now Available

Sexual Assault on Employee by Supervisor: Employer and Supervisor Liable for $620K

The Ontario Court of Appeal has upheld a jury award of $470,000 in damages, plus a costs award of $150,000, against an employer and a supervisor for the supervisor’s sexual assault of an employee.

The employee, a commissioned salesperson with Deluxe Windows, was sexually assaulted four times by the supervisor, who was also a principal and part owner of the company.  The supervisor was convicted criminally of sexual assault and was jailed.  The employee had started employment with Deluxe Windows 18 months after moving to Canada.

At trial, the employee testified she felt shame and was afraid that she would be targeted again.  She said that she was afraid to leave home and afraid to go shopping without her cell phone; she slept with double locks on her bedroom door, and purchased an alarm system for her home.  She experienced nightmares where the supervisor was chasing her and attacking her children.  She suffered from insomnia and had difficulty getting out of bed in the morning.  She suffered a loss of sexual desire and experiences intermittent suicidal ideations.

The supervisor had argued that the employee’s past experiences, including experiences as a child, “materially contributed” to her current problems, so that the supervisor and employer should not be responsible for damages for all of her current troubles. The jury appears to have rejected that argument.

On appeal, the supervisor argued that the damages award was “grossly disproportionate” and far outside the range of awards in other cases.  The Court of Appeal noted that the jury’s damage award was high and “outside of the generally expected range”.  However, it was not plainly unreasonable or unjust. 

This decision demonstrates that employers can be liable for assaults committed on employees by supervisors, and shows the significant potential damages.  The damage award reinforces the need for employers to implement and enforce workplace violence prevention programs, particularly in light of Ontario’s Bill 168 amendments relating to workplace violence and harassment.

M.B. v. Deluxe Windows of Canada, http://www.canlii.org/en/on/onca/doc/2012/2012onca135/2012onca135.html.

 

Sexual Assault on Employee by Supervisor: Employer and Supervisor Liable for $620K