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Notes taken post-accident can lose privilege if used to refresh memory, court decision suggests

Privileged notes taken by a witness – or by the employer from a witness – after a workplace accident may cease to be privileged if used by the witness to prepare to testify in court, a recent court decision suggests.

The case, which was not an occupational health and safety case, involved charges of refusing to provide an “Approved Screening Device” sample. The charge is often laid where a driver refuses to blow into a breathalyzer to determine whether he or she was driving while impaired.

The accused testified that he had made notes after the incident, as his father had told him to write down everything that he remembered, word for word.  At trial, he testified that he had read the notes to prepare for trial.

The judge decided that the accused had used the notes to refresh his memory, and therefore the litigation privilege over the notes was lost.  The judge decided:

“When the accused chooses to refresh his memory from notes to which litigation privilege would otherwise apply prior to taking the stand, the Crown is entitled to see such notes subject to the court’s discretion. An accused person who has prepared notes to refresh their memory and uses those notes to the refresh their memory prior to testifying has waived any litigation privilege attached to those notes. It is important that the opposing party have the opportunity to test the memory of events and expose inaccuracies in memory.”

Employers facing Occupational Health and Safety Act charges should understand that notes that would otherwise be litigation-privileged that are taken by the employer after a workplace accident may lose their privilege, and therefore be obtained by the prosecutor, if used by a witness to refresh his or her memory before testifying.

R. v. Sachkiw, 2014 ONCJ 287 (CanLII)

Notes taken post-accident can lose privilege if used to refresh memory, court decision suggests

Ontario Bill to extend protection of OHSA to unpaid trainees

A new Ontario Bill will give unpaid trainees the protection of the Occupational Health and Safety Act.  The OHSA currently gives that protection to paid workers only.

The current definition of “worker” under the OHSA is “a person who performs work or supplies services for monetary compensation . . .”

Under Bill 18, the OHSA’s definition of “worker” will be expanded to include unpaid high school, college and university students in certain approved programs; as well as certain unpaid trainees receiving training for their own benefit and not for the benefit of the employer.  Bill 18 also allows the government to pass a regulation making other unpaid persons “workers” under the OHSA.

Practically, most employers will already apply their safety programs to unpaid trainees as if the OHSA already applied to them.  The main impact of the redefinition of “worker” will be that employers are now exposed to charges and fines if unpaid trainees – who, one suspects, have a higher than average risk of being injured – are in fact injured. This makes it all the more important that employers ensure that trainees receive all necessary safety training.

Bill 18 passed first reading on July 16, 2014.  Due to the Liberal majority, the Bill is expected to pass.  We do not yet know when the Bill will come into force.

Bill 18, which contains amendments to a number of other employment-related laws, may be accessed here.

Ontario Bill to extend protection of OHSA to unpaid trainees

Company fined $25,000 for operating electrical contracting business without license under Electricity Act after apprentice injured

An electrical contractor has been convicted and fined for carrying on an electrical contracting business without being licensed under the Ontario Electricity Act.

A young apprentice with the company was seriously injured after an electrical explosion.

The apprentice was disassembling and reassembling “conduit runs” under the supervision of “others who were his masters or supervisors”. He was “pulling a disconnect of a busbar” when it exploded.  There was a fire and molten metal fell on him.  He suffered lasting injuries.

The court found that the company operated an electrical contracting business without being the holder of an electrical contracting license pursuant to Regulation 570/05 (“Licensing of Electrical Contractors and Master Electricians”) under the Electricity Act.

The court accepted the prosecutor’s request for a $25,000 fine for failing to hold the contracting license.

This case shows that the mere failure to obtain an appropriate license can cost employers many thousands of dollars in fines where the employer carries out safety-sensitive work.

R. v. JF Industrial Systems (Windsor) Inc., 2013 ONCJ 766 (CanLII)

Company fined $25,000 for operating electrical contracting business without license under Electricity Act after apprentice injured

$50,000 fine after trip-over-cord accident shows employers must listen to safety committee recommendations

A nurse’s trip over a cord has landed a hospital a $50,000 fine, where the joint health and safety committee had previously documented cord trips as a known hazard.

The nurse was administering medication to a patient.  When leaving the bedside, the nurse’s foot became entangled in a cable attached to the “bed check” equipment.  She fell and fractured her arm.

According to the Ministry of Labour press release, dangling cords were a known hazard in the workplace and the joint health and safety committee inspection records showed that.  The cord in question had not been secured, although hooks, clips or Velcro had been previously identified as methods of securing the cords.

The hospital pleaded guilty to a charge under the Occupational Health and Safety Act of failing to train the employee on trip hazards and was fined $50,000 plus the 25% Victim Fine Surcharge.

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

$50,000 fine after trip-over-cord accident shows employers must listen to safety committee recommendations

“Everyone just knew” was not a defence to OHSA charges: court

An employer’s assertion that “everyone just knew” the safety rules, was not a defence to charges under the Occupational Health and Safety Act, an Ontario court has held. The employer’s “casual, oral practice” – without a written policy – was not enough.

Anray Ltd., an excavating contractor, engaged one Marr to transport an excavator.  Marr stopped an employee, Kaczynski, who was in the middle of loading the excavator onto Marr’s truck so Marr could clean the excavator’s treads.  The employee left Marr to do the cleaning, after which Marr hopped in the excavator and tried to load it onto the trailer.  The excavator slid off the side of the trailer.  Marr was injured.

The Ministry of Labour charged Anray under the Occupational Health and Safety Act with failing to ensure that the excavator was moved in a safe manner.

Anray argued that “everyone just knew” that only Kaczynski would operate the excavator.  However, Justice of the Peace Conacher held that it was “well within the realm of predictability” that Marr might take it upon himself to load the excavator on the truck.

JP Conacher stated,

“As mentioned, the Defence relies heavily in its due diligence submissions on the contention that, with respect to the 14 ton excavator, ‘everyone just knew’ who was to operate the machine.  The ‘everyone just knew’ assertion was an element in a due diligence defence in another trial matter before this Court which illustrates the limitations of relying on such a practice.”

Instead, Anray’s “casual, oral practice” was insufficient for ensuring the safe movement of machinery or equipment. Anray was found guilty of the charge.

This decision seems surprising.  One would think that it is self-evident that only trained and authorized persons could load a 14-ton excavator on a trailer, and that no policy is needed on that point.  Employers cannot be expected to have written policies on every possible hazard, however unlikely.

Ontario (Ministry of Labour) v. Anray Limited, 2014 ONCJ 203 (CanLII)

 

“Everyone just knew” was not a defence to OHSA charges: court

Seat Belt Offence not “Absolute Liability”, Appeal Court Decides

A driver’s failure to wear a seat belt, which is an offence under the Ontario Highway Traffic Act, is not an “absolute liability” offence. Rather, “due diligence” is an available defence, the Ontario Court of Appeal has decided.

A police officer saw a driver, one Wilson, stop his vehicle at a stop sign. The officer noticed Wilson’s seatbelt hanging by his shoulder, and charged Wilson with failing to wear a seat belt, contrary to the Highway Traffic Act.  Wilson argued that he had removed his seat belt after stopping at the stop sign, because he noticed that his coffee in a cup holder in the backseat was spilling on his laptop.

“Absolute liability” offences involve automatic liability if the defendant did the prohibited act (here, failed to wear a seat belt), without any consideration of the person’s state of mind or degree of fault.  “Strict liability” offences, on the other hand, are a “half-way house” in which the person can avoid conviction by proving that he or she exercised “due diligence” (took reasonable care to avoid the prohibited act).  For example, a driver may have taken reasonable steps but the seatbelt did not close properly or had come undone.

The court quoted a previous decision which suggested that the default is that an offence is strict liability, so that the defendant may argue due diligence: “If the legislature wanted to impose the serious consequences that flow from the creation of an absolute liability offence, the means for so doing would have been known and available.” Clear wording was required to create an absolute liability offence.

Most Occupational Health and Safety Act offences are strict liability offences.  This decision, although not an OHSA case, shows that courts will default to an offence being strict liability – meaning the due diligence defence is available – unless the legislation clearly shows that absolute liability applies.

R. v. Wilson, 2014 ONCA 212 (CanLII)

Seat Belt Offence not “Absolute Liability”, Appeal Court Decides

Worker, Caught by MOL Inspector, Given Significant Fine for Safety Violation

An Ontario construction worker has been fined $1,500.00 after jumping from a hoist tower to a nearby roof.  Unfortunately for the worker, a Ministry of Labour inspector saw him do it. 

The worker was wearing a fall protection harness and lanyard, but the lanyard was not tied off.  He was approximately 50 feet above the ground when he jumped.

The worker pleaded guilty to failing to be adequately protected by a method of fall protection while exposed to a fall of more than three metres (9.8 feet).

This case shows that workers can incur significant fines for safety violations under the Occupational Health and Safety Act particularly where, as in this case, death or serious injury could have resulted.

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

Worker, Caught by MOL Inspector, Given Significant Fine for Safety Violation

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