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Corporate Director Fined under OHSA in Safety Belt Case

A corporate director of a stucco company has been fined $3,000.00 under the Ontario Occupational Health and Safety Act for failing to ensure that workers used safety belts on elevated work platforms.

An inspector caught workers not wearing safety belts attached to the elevated work platforms while using those platforms to perform stucco work on a five-storey office building.  The corporate director also owned the building.

The corporate director pleaded guilty to the charge.

This case is a reminder that corporate directors - not only workers and supervisors – may be charged under the Occupational Health and Safety Act.

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

Corporate Director Fined under OHSA in Safety Belt Case

Majority of OHSA Fines in $100,000 to $150,000 Range in Fatality Cases, Court Notes

In sentencing an employer to a $115,000.00 fine in the case of a tragic workplace death, an Ontario Justice of the Peace has discussed the range of fines against employers convicted of charges under the Occupational Health and Safety Act in regards to a workplace death.

The court stated:

“Reviewing the cases, where there is death, there is a general (and very large) range of sentence from $70,000.00 to $175,000.00, with extreme lows of under $50,000.00 and highs of over $200,000.00. The majority of the cases appear to be within a range of  $100,000.00 to 150,000.00.  It is my opinion that the appropriate sentence in this matter falls within this range. It is within that range that I can take into account the financial and other factors which I have referred to above.  I also consider the impact of the victim fine surcharge which ultimately increases by 25 per cent any fine that I impose.”

In setting the fine in the case at hand, the court noted that the defendant sincerely believed that the work procedure (for loading wood shavings from mills into a truck) was safe, the owner was sincere in his remorse and had reached out to the family of the deceased worker, and the employer had had some safety procedures in place.  The employee died when he fell into the truck after attempting to dislodge wood shavings, and the material engulfed him and he suffocated.

Our firm’s statistical analysis of fines under the Ontario OHSA showed that fines vary widely depending on whether the employer agrees with the Ministry of Labour’s proposed fine or lets the court set the fine.

The decision may be read here: R. v. Reliable Wood Shavings Inc., 2013 ONCJ 712 (CanLII)

Majority of OHSA Fines in $100,000 to $150,000 Range in Fatality Cases, Court Notes

Company Director Fined $8,500 After Swearing at MOL Safety Inspector, Making Threatening Gestures and Telling Inspector to Leave Project

Corporate directors can be charged by the Ontario Ministry of Labour and fined under the Occupational Health and Safety Act. Threatening and swearing at a Ministry of Labour inspector certainly increases the odds of charges being laid.

A Ministry of Labour inspector visited a construction project where Starland Contracting Ltd. had been hired to build a self-service car wash.  The inspector saw a worker on the roof without fall protection or a hard hat.

A few months later, the inspector made a follow-up visit.  The company’s director was on site and was acting as supervisor.  According to the Ministry of Labour press release, the inspector went to speak with the director, who uttered profanities at the inspector, told the inspector to leave the project, and made threatening gestures and comments towards the inspector.  The director refused to show identification when asked.

The next day, another Ministry of Labour inspector went to the site.  Starland was unable to show a Notice of Project Form or a Form 1000, which lists all employers and subcontractors on site.  That inspector issued an order for those documents, but they were not provided by the deadline in the order.

Starland and the director were charged by the Ministry of Labour under the Occupational Health and Safety Act.  After an ex-parte trial (meaning that the company and the director did not attend at the trial), the company was convicted of three offences under the OHSA and fined $29,500.00, and the director was convicted of two offences (hindering, obstructing, molesting and interfering with an inspector; and refusing to provide information requested by an inspector) and fined $8,500.00.

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

Company Director Fined $8,500 After Swearing at MOL Safety Inspector, Making Threatening Gestures and Telling Inspector to Leave Project

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

$20,000 Fine After HR Staff, Supervisor Fail to Immediately Report Injury to MOL

An Ontario employer has been fined $20,000 for failing to report an injury to the Ministry of Labour, showing that employers need to educate their managers about the types of injuries that must be reported under the Occupational Health and Safety Act.

A worker was injured when a loaded skid tipped and his leg became trapped under parts.  He suffered a broken bone which is a “critical injury” under the OHSA.  The OHSA requires employers to immediately report critical injuries to the Ministry of Labour.  The employee told his supervisor and, later, human resources staff that he had broken his leg.

Four days after the accident, the Ministry of Labour contacted the company about the accident.  The human resources staff said that the company was in the process of reporting to the Ministry of Labour.

The company pleaded guilty to failing to immediately report this critical injury to the MOL, contrary to section 51(1) of the Occupational Health and Safety Act.  The court imposed a $20,000 fine plus the 25% “victim fine surcharge”, for a total of $25,000.

It is not always obvious what types of injuries are “critical injuries” under the OHSA.  Employers should educate their managers and, where there is any doubt, obtain legal advice.

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

$20,000 Fine After HR Staff, Supervisor Fail to Immediately Report Injury to MOL

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

$75,000 Fine for Failing to Report Occupational Disease Claim

The Occupational Health and Safety Act obligation to notify the Ontario Ministry of Labour of accidents and occupational illness claims is not a mere technicality, as one employer has learned when it was hit with a $75,000.00 fine.

Three workers were assigned to dismantle equipment.  A worker was cutting the equipment when he saw a liquid substance emerge along with white smoke.  It was later learned that the equipment contained lead and that the worker had melted lead when doing the cutting.  Neither the worker nor his supervisor were aware that the equipment contained lead.

Later, two of the workers filed “occupational illness” claims with the Workplace Safety and Insurance Board for illnesses that had possibly resulted from the exposure to lead.  The employer was advised of these WSIB claims.  Although section 52(2) of the Occupational Health and Safety Act required that the employer report to the Ministry of Labour within four days of learning that a “worker has an occupational illness or that a claim in respect of an occupational illness has been filed with the Workplace Safety and Insurance Board by or on behalf of the worker . . .”, the employer did not notify the Ministry of Labour.

The employer was charged with and pleaded guilty to failing to notify the Ministry of Labour of the occupational disease claim.  The court imposed the fine of $75,000.00, merely for failing to report to the Ministry of Labour.

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

 

 

$75,000 Fine for Failing to Report Occupational Disease Claim

Real Estate Project Management Firm Fined $100,000 in Workplace Fatality

The death of one of its subcontractor’s employees has resulted in a $100,000 fine to a real estate project management firm.

Four workers of the subcontractor were demolishing an interior concrete block wall which was 26 feet high.  The wall collapsed on two workers.  The collapse was captured on video.  One of the workers died, and the other suffered severe injuries.

A Ministry of Labour investigation found that an inadequate demolition procedure was used.  The project management firm pleaded guilty, as a constructor, to two counts of failing to ensure that the health and safety of workers was protected.  The total fine was $100,000.

This case demonstrates how project management firms can be the “constructor” under the Occupational Health and Safety Act, thereby taking on responsibility for all workers on the project – not only the project management firm’s own employees.

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

 

Real Estate Project Management Firm Fined $100,000 in Workplace Fatality

MOL Inpector had not “Pounced” after Putting Employer at Ease about Possible OHSA Charges: Court

An inspector’s alleged statement that, “our branch is different up here.  I know in southern Ontario they fine, fine, fine. But we don’t do that here” was not a promise that he wouldn’t lay charges under the Occupational Health and Safety Act, a justice of the peace has decided.

The employer was charged with two offences under the Occupational Health and Safety Act.  It asked the court to throw out the charges for “abuse of process” because the Ministry of Labour inspector had not kept his promise that he wouldn’t lay charges.

The justice of the peace decided that the inspector “might just as easily have been saying, ‘We don’t jump to conclusions the first day, before we do a complete investigation.’”  Given that there had been a serious injury, it was virtually predetermined that there would be an investigation, and the employer should not have expected otherwise.  The inspector had not intended to put the employer at ease and then “pounce” on him.  There was no abuse of process.  The charges could proceed.

Ontario (Ministry of Labour) v. 1467344 Ontario Limited, 2013 ONCJ 588 (CanLII)

MOL Inpector had not “Pounced” after Putting Employer at Ease about Possible OHSA Charges: Court

$110,000 Fine Shows it’s Cheaper to Comply with Orders than Disregard Them

I recently wrote about the cost of failing to report accidents or occupational disease claims to the Ministry of Labour. The cost of failing to comply with an inspector’s orders can be even higher.

Harbour Sports Grille in Toronto received a number of orders from a Ministry of Labour inspector over a period of 6 months.  The company failed to comply with 13 of those orders.  The orders dealt with a number of issues including failing to set up a joint health and safety committee and failing to have required policies and programs (such as harassment and workplace violence) in place.  The Ministry of Labour charged the company under the Occupational Health and Safety Act with failing to comply with those 13 orders.

The company fought the charges and lost.  The presiding justice of the peace imposed a fine of $110,000.00.  One suspects that it would have been cheaper to comply with the orders.

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

 

$110,000 Fine Shows it’s Cheaper to Comply with Orders than Disregard Them

Engineer Now Facing Both Criminal Negligence, OHSA Charges in Mall Collapse

Police have laid criminal negligence charges against an engineer in relation to the Elliot Lake mall collapse in June 2012.

The charges against engineer Robert Wood are two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.

Police say that Mr. Wood was an engineer who was involved in the inspections of the building.

A well-publicized judicial inquiry into the collapse of the mall heard that the roof had leaked for many years and the steel support structure was severely rusted.

In April 2013, media reported that Mr. Wood was also charged with offences under Ontario’s Occupational Health and Safety Act relating to negligent advice.

The Occupational Health and Safety Act permits the Ontario Ministry of Labour to lay charges against a professional engineer or architect where, “as a result of his or her advice that is given or his or her certification required under this Act that is made negligently or incompetently, a worker is endangered.

Criminal negligence charges against engineers are rare, as are charges against engineers under the Occupational Health and Safety Act.  This will be an important case for engineers and safety professionals to watch.

CBC News’ report may be accessed here.

Engineer Now Facing Both Criminal Negligence, OHSA Charges in Mall Collapse

Backhoe Operator Swings Worker Around “Four Full Rotations”, Convicted of Criminal Assault

In a bizarre case, a backhoe operator has been convicted of assault under the Criminal Code after he tried, in a fit of rage, to throw a co-worker off the backhoe by rotating the machine four full rotations while the worker held on to a railing as his feet were flying free of the machine.

The altercation happened after the worker tried to confront the backhoe operator for coming into contact with his father’s truck.  It hadn’t helped that the worker had also complained about the operator’s operation of the backhoe on the previous day.

The worker testified that he approached the backhoe while it was loading a truck, and tried unsuccessfully to get the operator’s attention.  He then opened the backhoe door and yelled at the operator, after which an altercation ensued.  The worker said he fell onto the tracks of the machine, and got up and held the railing.  The operator then rotated the machine four full rotations, with the worker holding on the the railing with his feet flying free.  The worker eventually fell off and landed on the ground. He was unhurt.

The worker said that he lost his hat, which the operator started “stabbing” with the bucket of the machine.  A co-worker wisely persuaded him not to fetch his hat.

The court found the backhoe operator guilty of criminal assault.  The operator’s version of what happened was not credible, but the worker was generally credible, although both of them had been “immature”.

This case demonstrates that workplaces are not immune from the application of the criminal law. Where an employee’s workplace conduct violates the Criminal Code, the police may proceed with charges.

R. v. Schultz, 2014 ONCJ 9 (CanLII)

 

Backhoe Operator Swings Worker Around “Four Full Rotations”, Convicted of Criminal Assault

Employer Should have Fixed Safety Issue Before Accident, Not After: Safety Fix did not Merit Lower Fine

An employer’s corrective action taken after an accident did not entitle it to a reduced fine under the Occupational Health and Safety Act because the action should have been taken – and was legally-required – before the accident, the Ontario Court of Appeal has held.

The employer, Flex N-Gate Canada Company, an auto parts producer, was charged with offences under the Occupational Health and Safety Act after a worker broke several bones in her foot when a bundle of metal sheets slipped off a forklift and fell to the floor.

After a trial, the company was convicted of failing to ensure that material was moved in a safe manner and failing to properly train workers.  The presiding Justice of the Peace imposed a fine of $25,000.00 for each offence, for a total of $50,000.00.  A judge of the Ontario Court of Justice, on appeal, reduced the total fine to $25,000.00 because of the company’s corrective action after the accident.  The corrective action was in response to compliance orders made by a Ministry of Labour inspector against the company.  The appeal judge reduced the total fine by making the two fines “concurrent”.

The Ontario Court of Appeal restored the original fine of $50,000.00.  It decided that the post-accident corrective action simply brought the company into compliance with the Occupational Health and Safety Act – something that the company was already required to do before the accident.  The court stated, “Rewarding an employer for taking corrective action only in response to an inspector’s order reduces an employer’s incentive to take this action before an accident occurs” and also reduces the “deterrent effect” of fines in Occupational Health and Safety Act cases.

Fines may be reduced, the appeal court added, due to an employer’s corrective action beyond what the Occupational Health and Safety Act requires.  Also, an employer’s actions taken before the accident are relevant in setting the amount of the fine.

Lastly, the appeal court stated that “concurrent fines” are not permitted under the Occupational Health and Safety Act.  Because the $50,000.00 total fine imposed by the justice of the peace was “fit”, that fine was reinstated.

In summary, employers will not be rewarded for fixing safety problems after an accident, unless the fix is above-and-beyond what the Occupational Health and Safety Act already requires.

Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53 (CanLII)

 

Employer Should have Fixed Safety Issue Before Accident, Not After: Safety Fix did not Merit Lower Fine

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

Alberta Court imposes large fine for employer in calf-roping case

On October 31, 2013, the Alberta Court of Queen’s Bench released the sentencing decision in R. v. XI Technologies Inc., 2013 ABQB 651. A summary of the Alberta Court of Appeal’s decision affirming the employer’s convictions under Alberta’s Occupational Health and Safety Act can be found here.

The Court of Queen’s Bench sentenced the employer to a fine of $275,000, inclusive of the victim fine surcharge. The Crown had proposed a fine of $400,000 inclusive of the victim fine surcharge. The employer’s counsel argued that figure was too high without specifying a range of what would be appropriate.

The Court considered a number of aggravating factors, including: the Legislature’s increase to the maximum fines for a first offence under the Occupational Health and Safety Act from $150,000 to $500,000; the goal of deterrence; and the fact that the accident had resulted in a fatality. The Court also considered a number of mitigating factors such as: the work environment was not the usual workplace and the activities the employee was performing were unique; the employer was not operating the machine to make a profit; the risk of death was not probable; the employer had taken sincere, albeit inadequate steps to ensure safety and so, although the employer was negligent, it was not knowingly non-compliant with safety standards or recklessly indifferent towards employee safety; the employer was genuinely remorseful; the employer did not have a prior record; and the employer had made a donation to fund a memorial bursary.

This decision confirms that Alberta courts will continue to impose significant fines for breaches of the OH&S legislation, particularly where those breaches result in a fatality. It also highlights that employers must remain vigilant to safety issues in unexpected circumstances where employees are operating outside of their core work functions and that the employer’s ultimate responsibility for safety cannot be delegated to employees or third parties. Finally, this case provides that while employer donations will be considered as a mitigating factor in sentencing, they will not be credited dollar-for-dollar.

R. v. XI Technologies Inc., 2013 ABQB 651 (CanLII)

Alberta Court imposes large fine for employer in calf-roping case

Attack on co-worker who warned of unsafe behaviour gets employee 4 years in prison

An employee who attacked a coworker who warned of safety issues, has been sent to prison for four years.

CBC News reported that the employee was training a coworker on the use of heavy equipment, and that after the coworker warned that the employee was standing in an unsafe place and asked him to move away from the heavy equipment, the employee punched the coworker in the head several times, knocking him to the ground.

The employee then kicked the coworker in the head repeatedly with a steel-toed boot.

The coworker sustained serious injuries during the episode.  He suffered a stroke, has impaired speech and impaired cognition, and is partially paralyzed.

This case illustrates that workplace violence is not only a workplace issue, but can also result in police investigations, criminal charges and imprisonment.

The CBC report may be accessed here.

Attack on co-worker who warned of unsafe behaviour gets employee 4 years in prison

Post-Accident Safety Fixes: An Admission of Liability?

We are often asked whether post-accident fixes or improvements by an employer will be held against it if occupational health and safety charges are laid. For example, if an employer puts a guard on a machine after an employee was injured on the machine, will the court see the installation of the guard as an admission that the machine was not properly guarded?

Employers sometimes feel that they are caught between implementing the fix and risking having it be seen as an admission of liability, or not implementing the fix and risking a higher fine if convicted or being charged with violating a government order to fix the machine. Of course, most employers will be motivated to do what is right and install a fix if needed for safety reasons, regardless of whether that increases the risk of charges or fines; however, the possible risks should be considered. In some cases, quick implementation of the safety fix could actually help avoid charges.

It appears from the caselaw that post-accident safety fixes will, generally, not be considered an admission that an employer violated a safety rule, but may be considered by a court in determining whether the employer exercised due diligence (took all reasonable steps to prevent the violation) or had knowledge of the hazard. For example, the installation of a guard after an accident will likely not be an admission that a guard should have been in place, but it will be relevant to whether the employer, before the accident, took all reasonable steps to ensure that the machine was properly guarded.

In the recent case of R. v. Reliable Wood Shavings Inc., 2013 ONCJ 518, the court stated, “I believe that I can look at post accident conduct in assessing what was reasonable in all of the circumstances . . . What I cannot do is treat them as an admission of liability.”

On the plus-side, post-accident fixes will often lead to lower fines if a company is convicted of a safety offence, as the court will see the employer’s proactive safety fix as a sign of the employer’s commitment to safety. The cost of the fix will often also be considered by the court in setting the amount of the fine.

In one case, the Ontario Food Terminal Board made changes and modifications to the roadways within its facility, including the installation of several stop signs, concrete barriers, and signs around the area where the accident had occurred, after a workplace accident that eventually led to the worker’s death. While the OFTB was convicted of safety offences and fined $65,000, the Justice of the Peace did not view the post-accident actions as admissions of guilt or negligence. The court held that subsequent improvements by a defendant are not a basis for a finding of liability for safety offences, but will be considered in determining whether the employer exercised due diligence or had prior knowledge of the hazard.

An employer should consider, when faced with an accident, how post-accident fixes or improvements could be viewed by the court if the employer is charged. The question is usually not whether to implement the fix, but how to do it in a way that maximizes safety while minimizing legal risk. Advice from an occupational health and safety lawyer should be obtained, and if possible the work should be documented in a manner that confirms that it is not an admission of liability.

Post-Accident Safety Fixes: An Admission of Liability?

Disability Management Company and Principals Not Guilty of Making False Statement

A disability management company charged under the Ontario Insurance Act with knowingly making false or misleading statements to an insurer has been found not guilty. The charges were brought on behalf of the Financial Services Commission of Ontario.

The charges alleged that the company made false statements to an insurer to obtain payment for services that it said that it had provided.  Two principals of the company were also charged.  The business of the company was providing assistive devices and also arranging for assessments to determine persons’ eligibility for insurance benefits under the Statutory Accident Benefits Schedule pursuant to the Ontario Insurance Act.

The essence of the charges was that a doctor had not assessed certain accident victims – for which the disability management company sought payment from the insurer for services – and had not authorized the company to sign a form indicating that the doctor had indeed assessed those persons.

The court held that there was uncertainty in the evidence as to whether the doctor had met with the accident victims, and that the prosecution had not proven that it was unreasonable for the company to believe that it had the consent of the doctor to use the doctor’s name on the forms submitted to the insurer.  The doctor admitted that she had not kept careful track of her visits with the accident victims.

At the very least, this case illustrates that the Financial Services Commission of Ontario and other regulatory bodies take seriously the various stakeholders’ obligation to be truthful when they provide information.

R. v. Ontario Disability Management et al., 2013 ONCJ 470 (CanLII)

Disability Management Company and Principals Not Guilty of Making False Statement

Illegal to Have Cell Phone in Hand, Even for Only a Moment, While Driving: Ontario Appeal Court

Drivers who have a cell phone in hand are committing an offence, even if not using the phone at the time, Ontario’s top court has decided, overturning an appeal judge.

While the driver, Kazemi, was stopped at a stop light, a police officer saw her with a cell phone in her hand. The driver said that the cell phone had fallen from the seat to the floor when she stopped, and that she had picked it up when she got to the red light.

The trial justice convicted her of the offence of “holding or using a hand-held wireless communication device” while driving, pursuant to section 78.1 of Ontario’s Highway Traffic Act.  The appeal judge, however, found her not-guilty.  In his opinion, there must be some sustained physical holding of the device in order to meet the “holding” requirement, so that momentary handling was not enough.  We previously wrote about the appeal decision on this blog.

The Ontario Court of Appeal disagreed, and stated that ”having it in one’s hand” is enough to be guilty of the offence of “holding” a cell phone.  According to the Court of Appeal, that interpretation best meets the objective of road safety and avoids the “enforcement challenge” of requiring a police officer to have “continued observation of the driver” for a period of time in order to write a ticket.

The Ontario Court of Appeal’s decision makes it much more difficult for drivers to beat charges under Ontario’s distracted driving law.  We had previously blogged about some of the creative arguments and alibis tried by drivers, including “it was a garage door opener”; one expects that those arguments and alibis will be unsuccessful in most cases, especially in light of the Court of Appeal’s decision.

As a result of this decision, employers may wish to ensure that their mobile device / distracted driving policy prohibits employees from having a cell phone in hand while driving.

R. v. Kazemi, 2013 ONCA 585

 

Illegal to Have Cell Phone in Hand, Even for Only a Moment, While Driving: Ontario Appeal Court

Record $1.050 Million Fine under Ontario OHSA

An Ontario judge has imposed a $1,050,000 fine against Vale Canada Limited, the highest fine ever imposed under the Ontario Occupational Health and Safety Act.  It appears that the previous record fine, handed down in 2010, had been $850,000.

Vale is also required to pay a Victim Fine Surcharge of 25%, bringing the total to $1,312,500.

The fine resulted from a double-fatality after an uncontrolled release of broken rock and ore buried one worker and hit the other in a Sudbury mine.

Vale pleaded guilty to three counts under the Occupational Health and Safety Act including failing to prevent the movement of material through an ore pass while hazardous conditions (a hang-up of broken rock and ore).

Mr. Justice Randall Lalande of the Ontario Court of Justice sentenced Vale to a fine of $350,000 on each count.  The Ministry of Labour, in its press release, notes that “This is the highest ever total fine levied by a Court in Ontario for contraventions of the Occupational Health and Safety Act.”

According to the Sudbury Star, Vale and the Ministry of Labour presented a joint-submission to the court, that the fine be $350,000 per count. The court accepted the joint submission.

The maximum fine under the Occupational Health and Safety Act for a corporation is $500,000 per count.

What were the factors that led the court to impose this historic fine?  It appears that Vale’s size, the fact that two workers died, and the OHSA record of Vale were signficant factors.

In particular, Inco, the operations of which Vale purchased, was convicted in 2001 of two charges under the OHSA and fined $650,000 ($325,000.00 per count) after a worker died.  It was noted at the time that Inco had 11 prior convictions.

Earlier this month, the Ontario Court of Appeal imposed a fine of $750,000 for criminal negligence causing death, on Metron Construction – up from the $200,000 fine imposed by the trial judge.  In that case, the Court of Appeal stated that the cases under the OHSA “revealed a range of fines between $115,000 and $425,000 for cases involving fatalities.”

The Vale (OHSA) and Metron Construction (Criminal Code) fines seem to suggest that fines, particularly in fatality cases, are rising in Ontario.  Employers should take note.

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

Record $1.050 Million Fine under Ontario OHSA