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Alberta Court of Appeal clarifies what the Crown must prove in a general duty offence

The Alberta Court of Appeal recently provided clarity on what the Crown must prove in a prosecution under the general duty section in the Occupational Health and Safety Act (Alberta) (“OHSA”) of failing to ensure the health and safety of a worker. The general duty section was then section 2(1) of the OHSA, and is now section 3(1)(a).

The employer had been originally found guilty on two charges, including the general duty offence, following a workplace fatality. The employer successfully appealed the convictions and the summary conviction appeal judge ordered a new trial. The Crown was granted leave to appeal the decision, bringing the question before the Alberta Court of Appeal. Please see our previous posts discussing this case for more information on the background and history of the proceedings.

The key question before the Alberta Court of Appeal was whether the expression “as far as is reasonably practicable for the employer to do so” in the general duty section was part of the actus reus; in other words, whether it was part of the physical components of the offence that the Crown had to prove. The majority set out to provide an interpretation of the general duty section that would result in a more comprehensive framework for the actus reus requirement for the general offence provision.

The Crown argued that it could rely on the “accident as prima facie proof of breach” concept when proving the actus reus in order to satisfy its legal burden. In the majority decision, the court disagreed and determined that the expression “as far as it is reasonably practicable for the employer to do so” did form one element of the actus reus. Therefore, for an offence under the general duty of the OHSA, the Crown must establish beyond a reasonable doubt the following:

  1. The worker must have been engaged in the work of the employer;
  2. The worker’s health or safety must have been threatened or compromised (i.e. an unsafe condition); and
  3. It was reasonably practicable for the employer to address the unsafe condition through efforts that the employer failed to undertake.

The majority found that these elements were consistent with the language of the OHSA, its purpose and intent, the Supreme Court of Canada’s guidance in Sault Ste. Marie and the interpretation given to similar provisions in other jurisdictions. This did not constitute a codification of the due diligence defence and did not undermine the OHSA’s basic goals. The majority did acknowledge that the employer’s obligation to establish due diligence on the balance of probabilities would overlap with the Crown’s obligation to prove that it was reasonably practicable for the employer to address the unsafe condition. However, those remained distinct inquiries which were subject to different standards of proof. In addition, certain factors such as mistake and employee error could affect the due diligence defence in ways that would not affect the actus reus assessment.

The second ground of appeal was whether the appeal judge erred in law in her interpretation and application of the due diligence defence. The majority reviewed this issue and determined that the Crown had not identified any error in the appeal judge’s review of the application of the due diligence defence and thus this ground of appeal was dismissed.

In the minority decision (concurring in the result), the justice disagreed that the words “as far as it is reasonably practicable for the employer to do so” constituted part of the physical components that the Crown must prove. The minority decision stated that imposing that requirement on the Crown would require it to prove standard industry practices, what a reasonable company would have done, or that the measures taken by the employer were insufficient and unreasonable. Thus the Crown would have to prove negligence or negate due diligence. However, it would not always be possible for the Crown to prove exactly how a workplace incident actually occurred, which is why the general duty was set out in the OHSA. Therefore, to establish the physical components for the general duty offence, the minority held that the Crown need only prove beyond a reasonable doubt that something happened within the control of an employer that negatively affected the health or safety of its workers.

The minority agreed in the result that the appeal should be dismissed and the matter sent back for a new trial.

R. v. Precision Diversified Oilfield Services Corp., 2018 ABCA 273 (CanLII)

Alberta Court of Appeal clarifies what the Crown must prove in a general duty offence

Owner of electrical contractor, who transferred assets due to looming charges, held personally liable for company’s $430,000 regulatory fine

In what appears to be a novel decision in the regulatory context, a judge has held an owner of an electrical contracting firm personally liable for the company’s regulatory fines after he transferred assets out of the company following a fatal incident.

In 2014, an elderly man died from burns after being found lying on his bathroom floor, which had overheated.  It turned out that the overheating was caused by the negligence of one of the contractor’s employees four years earlier when he installed an underfloor heating mat in the bathroom.

The company pleaded guilty to three charges under the Electricity Act in respect of the installation.  The court fined the company $430,000.

The judge found that the owner had transferred assets, including property, out of the company after he learned that the company was going to be charged, in order to avoid having to pay a fine.   The judge also stated that the owner had been dishonest in his testimony, and misleading to the Electrical Safety Authority. The company was evidently left with no, or very few, assets to pay the fine.

The judge decided to “pierce the corporate veil” and require the owner and a related entity, to which he had transferred assets, to pay the fine.  In a rather scathing decision, the judge held that the owner, by blurring the lines between himself and the company, had put his own personal assets at risk.  The judge decided that although no statute gave him the power to “pierce the corporate veil” and make the owner personally liable, a judge should do so where it would be “too flagrantly opposed to justice” not to.  The judge stated:

If Mr. Merante had simply shuttered Pro-Teck and left its assets intact and gone on and opened up Master Electric, he could not have been faulted . . . But he did not simply do that.  Two roads diverged before him and Mr. Merante took the one marked self-interest and deceit rather than the one that was marked by his duty to respect his obligations as a shareholder and his duty to accept that the protections that came with Pro-Teck’s corporate status also created responsibilities.

In the result, the judge decided that the owner’s “acts deprive him and Master Electric, both beneficiaries in one way or another of the diversion of assets, of their legal separateness from Pro-Teck.  He in effect treated all three legal entities as one; as he sowed, so shall he reap.  The fines levied against Pro-Teck may be recovered from Mr. Merante personally and from Master Electrical Contracting Services Ltd., 2433302 Ontario Ltd.”

It is unknown at this time whether this decision has been appealed.  Although the owner’s behaviour was clearly troubling to the judge in this case, it is an open question as to whether an appeal court would decide that the judge had the legal authority to “pierce the corporate veil” and make the owner personally liable for the fine.

R. v. 1137749 Ontario Ltd. (operating as Pro-Teck Electric), 2018 ONCJ 502 (CanLII)

Owner of electrical contractor, who transferred assets due to looming charges, held personally liable for company’s $430,000 regulatory fine

OHSA charges in fatality case dismissed for delay. Crown did not have “concrete plan” to move case along

An Ontario appeal judge has upheld the dismissal of Occupational Health and Safety Act charges against employees due to delay.

The charges resulted from the death of a mining employee from cyanide intoxication by way of skin absorption.  The company itself had pleaded guilty to criminal negligence charges, after which all fifteen OHSA charges against the company were withdrawn. Criminal charges against one of the employees were withdrawn at the same time.

The total delay in this case, from the laying of the charges until the last day scheduled for trial, was 21 months, which exceeded the 18-month presumptive delay ceiling set out by the Supreme Court of Canada in the Jordan case. 

The trial judge found that the Ministry of Labour prosecutor had breached his duty to develop and follow a concrete plan to minimize the delay due to the complexity of the case. Also, it was not reasonable for the prosecutor to fail to seek trial dates until 5 1/2 months before the 18-month “presumptive ceiling” for delay. Further there was no effort by the prosecutor until late in the case, to seek to narrow the issues or shorten the trial by seeking admissions, attempting to negotiate an agreed statement of facts, or seeking agreement regarding documents, despite being invited by the defence to do so. The trial judge therefore concluded that the prosecutor’s trial management fell well below the standard set out in the Jordan, and the appeal judge upheld that finding.

In the result, the appeal judge upheld the trial judge’s decision to stay the charges against the employees for delay, bringing the prosecution to an end – despite the fact that the charges were particularly serious as they resulted from a fatality.

R. v. Nugent, Guillemette and Buckingham, 2018 ONSC 3546 (CanLII)

OHSA charges in fatality case dismissed for delay. Crown did not have “concrete plan” to move case along

“Distracted” by cell phones, forklift operators were guilty of OHSA offence

Two forklift operators at a bottling plant have been found guilty after they were served with tickets under the Occupational Health and Safety Act charge for using cell phones while sitting on their forklifts. The charge was operating equipment in a manner that may endanger a worker: one could say “distracted driving”, but on a forklift.

A coworker staged a work refusal after observing the forklift operators using cell phones while seated on their forklifts.  A Ministry of Labour inspector was called in.  The coworker, who was retired at the time of trial, testified that one operator was seen sitting on the forklift looking at the cell phone while the forklift was stationary and not moving, and the other operator was seen showing his cell phone to another employee.

The court did not accept the forklift operators’ version of events: one said that he had used his cell phone only to check the time, and the other said that he was off of his forklift and that it was actually another employee who had been using his cellphone.  The court found that they had their cell phones with them and were using them.

The court decided that “operating or using” a forklift included sitting on a forklift even when it was stopped and turned off; other workers and forklifts may be nearby and put at risk by the operator’s distraction and inattention to his surroundings while using the cell phone.  Further, the employer had a clear rule prohibiting use of cell phones in the warehouse, and even displayed a poster with a cell phone with a slash through it.  The operators were therefore guilty of the OHSA charge against them.

The court stated:

“Like motorists who unlawfully hold or use cellphones or other mobile communication devices while operating or driving motor vehicles on public highways in Ontario, workers that use cellphones or other mobile communication devices while operating equipment or machines in factories or warehouses, such as a forklift, would also pose the same danger to themselves or others, as a consequence of being distracted to what is going on around them while using those mobile communication devices.”

Ontario (Ministry of Labour) v. Nault, 2018 ONCJ 321 (CanLII)

 

 

 

“Distracted” by cell phones, forklift operators were guilty of OHSA offence

Employer ordered to pay fine of $100,000 following a fatal workplace incident at a road building construction site after court accepts joint submission

The Territorial Court of the Northwest Territories considered and accepted a joint submission from the Crown and defence, sentencing the employer to a $100,000 fine. The matter arose following a workplace incident in June 2016 where a young worker was killed. The worker had been operating a vibrating roller packer used to compact a new access road in the Northwest Territories. The packer had rolled off the road and the worker either fell or attempted to jump out of the packer as it was rolling over. The packer rolled over on top of him, killing him.

The employer faced a number of charges and had pled guilty to a charge of failing to ensure that the worker was properly supervised. The court considered the significance of a joint submission, noting that it was normally the result of a negotiation process between lawyers. This process was important to the administration of justice and thus, the court must normally defer to the joint submission within the bounds established by the Supreme Court of Canada in an earlier case. The Supreme Court of Canada has stated that when considering a joint submission on sentence, the trial judge should accept it unless doing so would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. This would occur where the joint submission is such that it would be “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system” and that trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts.”

In order to apply this test, the court in this case reviewed established sentencing principles, noting that the ultimate goal of imposing a significant fine was behaviour modification, both specific deterrence (deterring this employer from similar offences in the future) and general deterrence (deterring other employers from committing similar offences). However, the sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. The court applied the following factors and considerations when assessing the amount of the $100,000 fine proposed by the joint submission:

  • Nature of the offence – there was a recognized danger that the packer could roll over. It was equipped with a rollover protection structure and had several warning labels stating that seat belts must be worn. The evidence was clear that the worker had not been wearing a seat belt at the time of the incident. There was no evidence that anyone had ever told the worker that he should wear his seatbelt. The court found that the worker should have been instructed to wear a seatbelt and that his supervisor should have ensured he was wearing a seatbelt and not operating the packer on or near an inclined surface. The failure to do so was a serious omission.
  • Nature of the offender – the employer was a relatively small, privately-held corporation with revenue in 2017 slightly over $1,000,000.
  • Degree of blameworthiness – the court recognized this was not a situation where the employer was taking chances to make money. However, a young worker with no formal training had been put in charge of a piece of heavy equipment without proper instruction or supervision. Instruction and supervision with respect to the safe operation of the packer should have been integral to the company’s operations.
  • Capacity to pay a fine – given the employer’s revenue in past years, the court was satisfied that $100,000 was a significant amount and has a substantial deterrent effect.
  • Maximum fine under the legislation and range of fines – the maximum fine under the Northwest Territories Safety Act was $500,000. On a review of cases involving similar circumstances, the court was satisfied that $100,000 was within the range of fines normally imposed for this type of offence.
  • Previous convictions – the employer had no history of safety or other regulatory infractions.
  • Harm and potential harm – the worker died as a result of being crushed by the packer. Had he been wearing his seatbelt, he likely would have been held within the protective structure and protected.
  • Contributory negligence – the worker should have been wearing his seatbelt and the court assumed he would have seen the prominent warning labels. He chose not to wear his seatbelt. However, he was a young man and would have relied on those who supervised him and may have believed there was no real possibility of a rollover. While there were levels of THC found in his blood indicating that he had consumed hashish or marijuana in the hours before the accident, the evidence was not properly before the court and it did not establish that cannabis consumption had anything to do with his death. The court recognized however that this may have been one of the matters that was part of the negotiations for the joint submission.
  • Post offence conduct – the employer had spent over $37,000 to fly the worker’s family to the Northwest Territories on more than one occasion and had created a memorial to the worker. The employer had cooperated with the investigation. The guilty plea was a mitigating factor on sentence. The presence of one of the owners at the sentencing hearing was also significant.
  • Balancing of factors – the court noted that none of these factors can be considered in isolation, nor would one override the others.

The court considered all of these factors and accepted the joint submission, ordering the employer to pay a fine of $100,000. The court waived the 15% victim crime surcharge because it was satisfied that it would result in undue hardship to the employer.

R. v. Allen Services & Contracting Ltd., 2018 NWTTC 03 (CanLII)

Employer ordered to pay fine of $100,000 following a fatal workplace incident at a road building construction site after court accepts joint submission

Out-of-business company that did not defend OHSA charges, fined $1.3 million after two workers killed

A defunct mining company that went out of business in 2016 has been fined $1.3 million under the Ontario Occupational Health and Safety Act after being found guilty on six charges.  This is one of the largest OHSA fines in Ontario history.  However, it should be noted that the company, First Nickel Inc., did not defend this Ministry of Labour prosecution.

The fine included:

-$250,000 for failing to ensure that part of the underground mine was kept free of accumulations or flow of water

-$350,000 for failing develop a quality control program to ensure that ground support systems were properly installed and remained effective

-$300,000 for failing to ensure that a written record was made by the shift supervisor about the dangerous condition

-$100,000 for failing to ensure that a written report was provided to the Ministry of Labour where a fuse, a detonator or an explosive is found to be defective

-$150,000 for failing to develop a written program to provide for the timely communication of information between workers and supervisors in the mine respecting ground stability, ground movement, falls of ground, ground monitoring equipment and emergencies

-$150,000 for failing to examine the ground conditions of the workplace for dangers and hazards and, if required, made safe

The MOL notes, in its press release, that the mine closed in 2015, the company was not represented in court, and the company went out of business in 2016.

The MOL press release can be accessed here.

 

Out-of-business company that did not defend OHSA charges, fined $1.3 million after two workers killed

$5.3 million combined OHSA / EPA fine upheld on appeal in Sunrise Propane case: worker’s actions after explosions showed that he was not properly trained

The dramatic explosions at a propane facility in Toronto in 2008 resulted in the tragic death of one worker and damage to many nearby homes.  An Ontario judge has now upheld a combined fine of more than $5.3 million, plus the 25% “Victim Fine Surcharge”, against Sunshine Propane Energy Group and a related company, and two corporate directors.  We previously wrote about the trial decision and fines.

The appellants were found guilty, after a fourteen-day trial, of a total of seven charges under the Environmental Protection Act and Occupational Health and Safety Act.

With respect to the charge under the OHSA of failing to provide “information and instruction” to the worker, the court noted that the worker who died had only four to five months of experience at the company, and was effectively left in charge of the yard on the day of the explosions, which was “a position prohibited by his lack of education, experience and training”. The trial judge decided that the explosions were a foreseeable event given that an untrained employee had been left in charge, and the appeal court agreed. The appeal judge also agreed that the fact that the worker ran towards the explosions, instead of away from them, showed his lack of training.

The appeal judge also decided that the fines imposed were appropriate. The EPA fines of $5,020,000 (including $100,000 against each of the corporate directors) were unprecedented, but there were a number of “aggravating factors” including the “widespread damage and effects caused by the appellants’ reckless behaviour in conducting truck to truck transfers without licence and with full knowledge of the risk . . .”  Also, “the magnitude of the event was unprecedented in Ontario”.  The OHSA fines of $280,000 were also appropriate in the circumstances.

R. v. Sunrise Propane Energy Group Inc., 2017 ONSC 6954 (CanLII)

 

$5.3 million combined OHSA / EPA fine upheld on appeal in Sunrise Propane case: worker’s actions after explosions showed that he was not properly trained

Fact of accident, without more, is not enough to convict on OHSA charges, appeal court decides

A trial judge was wrong to find a City guilty of Occupational Health and Safety Act charges solely because an accident had occurred in which a worker died.  The trial court should have gone further and analyzed each charge.

The charges were filed against the City of St. John’s after a tragic accident on a road construction site that resulted in one worker dying after being hit by a car. There were seven charges against the City including failure to provide adequate training and failure to maintain adequate traffic control.

The trial judge had held that the mere fact of the car striking the employee was proof of the actus reus of the charges.  The appeal court decided that that was wrong: the trial judge should have analyzed each charge to determine whether the prosecutor had called evidence to prove each element of the offence.  The trial judge had wrongly focused on the consequences of the alleged breach of the OHSA (the accident and the worker’s death) rather than on “the identification and proof of the actual elements of each offence”.

This decision is a welcome reminder that occupational health and safety prosecutors cannot simply rely, in seeking to obtain a conviction on OHSA charges, on the fact that an accident took place. Instead, they must do the work of proving each charge.

R. v St. John’s (City), 2017 NLCA 71 (CanLII)

Fact of accident, without more, is not enough to convict on OHSA charges, appeal court decides

Court finds that “accident as prima facie breach” principle precludes an order for particulars on an OHSA “general duty” charge

The “accident as prima facie breach” principle has been before the court in several recent cases, often with some discrepancy in its application. The principle was again before an Alberta court recently in the context of an application for particulars.

The principle provides that in some cases, proof that an employee was injured in an accident while performing his or her employment duties proves the actus reus for an occupational health and safety (OHSA) “general duty” charge, as long as the necessary elements are proven beyond a reasonable doubt. The burden then shifts to the accused to establish a due diligence defence.

In this case, a worker was seriously injured in a workplace incident and the employer was charged with 8 counts. Count 1 of the Information was a “general duty” breach allegation stating that the employer had failed to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker, contrary to section 2(1)(a)(i) of the Occupational Health and Safety Act (Alberta). After receiving the Crown’s disclosure, the employer applied for particulars of Count 1 on the basis that there was information contained in the Crown disclosure which left the employer uncertain about what act or omission the Crown intended to rely on to sustain Count 1.

At the application hearing, the first issue before the court was whether the “accident as prima facie breach” principle for an OHSA general duty charge would preclude an order for particulars. The court reviewed the principle, noting that the case law had established that the “accident as prima facie breach” principle requires that in order for the Crown to prove the essential elements of an OHSA “general duty” charge beyond a reasonable doubt, the Crown must prove that:

  1. there was an employee;
  2. the employee was injured in an accident; and
  3. the employee was performing his or her duties in the course of his or her employment when injured.

The court noted that the principle does not relieve the Crown of establishing beyond a reasonable doubt that the employer committed a wrongful act but rather, reflects that sometimes, proof of the consequence, that is, the accident, is sufficient to establish that a wrongful act was committed. However, the principle was not one that would apply in all cases as there may be some instances where the wrongful act by the employer cannot be inferred from the circumstances of the accident.

Requiring the Crown to provide particulars of the specific acts, omissions or breaches by the employer under Count 1 would transform those particulars into essential elements of the actus reus of the offence which the Crown would then need to prove beyond a reasonable doubt. The court found that this would generally be inconsistent with the principle applicable to an OHSA “general duty” charge and would place a far higher onus on the Crown.

In the case before it, it was known why the incident happened. A boom stick being held above the ground by a hook and sling held by a caterpillar tractor fell from the hook and sling, severely injuring the worker. As such, the court determined that it was appropriate to apply the “accident as prima facie breach” principle and thus the court was precluded from making an order for particulars of the acts, omissions or breaches by the employer for the Court 1 OHSA “general duty” charge.

The court then proceeded, in obiter, and in what results in a somewhat confusing decision, to find that if the court was wrong on the conclusion that the “accident as prima facie breach” principle precluded it from ordering particulars, then the court would have made an order for particulars as requested by the employer.

R. v. Midwest Pipelines Inc., 2017 ABPC 222

Court finds that “accident as prima facie breach” principle precludes an order for particulars on an OHSA “general duty” charge

In important decision, Ontario appeal court says that general duty clause in OHSA can impose higher obligations than specific requirements in regulations

The Ministry of Labour can prosecute employers under the “general duty” clause of the Occupational Health and Safety Act even where the charges impose obligations that are greater than those set out in the regulations under the OHSA, the Ontario Court of Appeal has decided.

In this case, a trial and appeal justice had decided that the employer could not be found guilty of failing to provide guardrails around a temporary work platform.  They reasoned that the applicable regulation under the OHSA (“Industrial Establishments”), which dealt with the issue of guardrails, did not require guardrails in this particular situation (a temporary work platform at a height of six feet).  As such, the lower courts held that the MOL could not use the “general duty” requirement found in s. 25(2)(h) of the OHSA to impose obligations greater than those in the regulation.

The Ontario Court of Appeal disagreed, stating that regulations cannot be expected to anticipate the circumstances of all workplaces across Ontario. The key question in this case was whether the installation of guardrails was a reasonable precaution.  The Court of Appeal held that the trial justice failed to address that point.

The court concluded, at paragraph 45:

It may not be possible for all risk to be eliminated from a workplace, as this court noted in Sheehan Truck, at para. 30, but it does not follow that employers need do only as little as is specifically prescribed in the regulations. There may be cases in which more is required – in which additional safety precautions tailored to fit the distinctive nature of a workplace are reasonably required by s. 25(2)(h) in order to protect workers. The trial justice’s erroneous conception of the relationship between s. 25(2)(h) and the regulations resulted in his failure to adjudicate the s. 25(2)(h) charge as laid.

Practically, one expects that MOL inspectors will consider using this decision to issue compliance orders – or charges – under the “general duty clause” even where the regulations deal with the specific safety issue at hand – such as guardrails or fall arrest – but do not apply in the particular case.  For instance, MOL inspectors may issue compliance orders or charges for failing to provide guardrails around a temporary work platform that is only one foot high.

The appeal court allowed the appeal and ordered a new trial before a different justice.

Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006 (CanLII)

In important decision, Ontario appeal court says that general duty clause in OHSA can impose higher obligations than specific requirements in regulations

Ontario proposing to triple maximum OHSA fine to $1.5 million, change limitation period for laying charges

The Ontario government has introduced legislation to triple the maximum fine under the Occupational Health and Safety Act against corporations to $1.5 million per charge, and quadruple the maximum fine against individual persons – such as workers, supervisors or directors – to $100,000 per charge.

The proposed amendments are, one might say, buried in Schedule 30 to Bill 177 that would implement certain “budget measures”.  Perhaps for that reason, they have received very little attention.  The Bill is called, “Stronger, Fairer Ontario Act (Budget Measures), 2017”.

The Bill received second reading on November 30th and has now been referred to the Standing Committee on Finance and Economic Affairs.

The Bill would also change the limitation period for laying charges under the OHSA, which is currently one year. The new limitation period would be the later of one year or “the day upon which an inspector becomes aware of the alleged offence”. That seems to mean that for accidents that employers are not required to report to the Ministry of Labour, the limitation period would continue running until the MOL finds out about the accident – which could be years later when an inspector drops in for an inspection of the workplace.

There are other proposed amendments to the OHSA,  which we will write about next week.  Stay tuned.

Ontario proposing to triple maximum OHSA fine to $1.5 million, change limitation period for laying charges

Court should be careful not to measure the practices of “smaller concerns” against those of large companies with far more resources, Justice of the Peace says in dismissing OHSA charge given due diligence

An Ontario Justice of the Peace has dismissed an Occupational Health and Safety Act charge in a fatality case, finding that the employer had established due diligence.

In a July blog post, we reported on an earlier decision in this case.  The OHSA charge against the company resulted from a fatality at a construction site after a “curb machine” overturned while being off-loaded from a “float” trailer, crushing a worker who later died. There were no witnesses to the accident.  The charge against the company alleged that the curb machine was moved in a manner that endangered a worker.

The Court decided that the worker deviated from the standard practice that he and other workers had followed on previous occasions.  There were no training courses available for the task in question, but the worker had in the past demonstrated his experience and ability to do that task. The employer was entitled to rely on the experience of a worker.

The court stated:

“(260)  Despite the fact that [a company witness] could have presented better while on the witness stand, and could have established a more formalized training protocol within his company, his approach is one that is shared by many small to medium sized companies.  These smaller concerns, in general typically have less resources to devote to formalized training (if any existed) but that does not necessarily mean that he was exposing his workers to foreseeable risks and dangers.  In fact the court must be careful not to measure the practices of smaller concerns against those of larger companies with far more resources as it might lead to potential prejudice and be antithetical to the very noble purposes that the court (and the MOL) would wish to uphold.”

In summary, with respect to due diligence: the company had held regular safety meetings; there were no formal education courses that one could take on the loading / unloading task; the worker knew or should have known that what he was doing was unsafe; the company encouraged workers to discuss any safety concerns and provided a forum for those discussions at regularly scheduled meetings; the worker had successfully moved the curb machine 27 times; and there was no evidence that this was an industry wide safety issue.

The employer had therefore established due diligence.  In the result, the charge was dismissed.

Ontario (Ministry of Labour) v. Cobra Float Service Inc., 2017 ONCJ 763 (CanLII)

Court should be careful not to measure the practices of “smaller concerns” against those of large companies with far more resources, Justice of the Peace says in dismissing OHSA charge given due diligence

Lack of remorse results in 4 month jail sentence for supervisor in fatal trench incident

An Alberta judge cited a lack of remorse as a factor warranting a 4 month jail term for a supervisor of a work site. The supervisor, as well as his employer, had been charged with a variety of offences stemming from an incident that occurred in April 2015 where a trench at an infill housing construction site collapsed, fatally injuring a worker. The worker was a casual day labourer who had been working in the trench to install new water and sewer lines. The trench was not braced in any way, contrary to the legislation, and a wall collapsed, trapping the worker inside the trench where he died. The employer pleaded guilty to the charge of failing to ensure the health and safety of a worker and the supervisor pleaded guilty to the charge of failing to take reasonable care to protect the health and safety of another worker.

While a guilty plea will often be considered a mitigating factor, it did not have that effect in this case. The judge found that the employer and the supervisor had exploited a vulnerable worker for profit and put their own interests ahead of safety and the requirements in the regulations. Therefore, the judge found that jail time was appropriate as the supervisor’s culpability was very high.

The employer was sentenced to a fine of $425,000 plus the victim fine surcharge of $63,750. However, the judge noted that the employer was a company without assets and she acknowledged that it was unlikely to pay the fine. Nevertheless, the judge considered it appropriate to issue a large fine in order to have an impact on other corporations who may be motivated to conduct business in a similar manner.

The developer of the worksite had previously pleaded guilty as the prime contractor to the charge of failing to ensure the legislation was complied with on a work site. The developer had agreed to a fine of $111,250 and a $50,000 contribution in the worker’s name to an organization where he had previously accessed services to assist in providing safety training and equipment to day labourers.

This case is a clear example of an increasing trend across Canada where courts are willing to sentence supervisors to jail time for occupational health and safety offences. Jail time sentences are likely to continue to be imposed and, as this case demonstrates, the sentences are likely to become longer.

See here for a list of charges (charged is: Haya Homes Ltd., Sahib Contracting Inc., Sukhwinder Nagra).

Lack of remorse results in 4 month jail sentence for supervisor in fatal trench incident

Well-trained worker’s negligence, which was unforeseeable, caused his death: company not guilty of OHSA charge

An Ontario judge has decided that a worker’s negligence – not the company’s – caused the worker’s death, overturning a conviction and fine in a Ministry of Labour prosecution against the company under the Ontario Occupational Health and Safety Act.

The worker died when he cut a band holding steel coils together, without ensuring that the coils were stabilized.  The coils fell on him. There were no eyewitnesses to the incident.

The company was found guilty at trial on one OHSA charge of failing to provide suitable “information, instruction and supervision” to the worker. The company appealed.

The worker had worked for the company for 18 years. He had received 80 hours of hands-on training from a fellow employee and had received other extensive safety training from the company.  The company had safe operating procedures, some of which were not in writing, but that was not required by law.

The judge decided that the court may consider a worker’s negligence in determining whether the employer was guilty of failing to provide the worker with suitable “information, instruction and supervision”. Also, the trial Justice of the Peace erred when she failed to consider the defence expert’s evidence that the design and layout of the work area were appropriate as were the established work procedures.

The court concluded:

“There was ample evidence of thorough and extensive employee safety training, and the accident was not due to a lack of it.  It was the negligence of [the deceased worker] which caused it, something the company could not have foreseen.  It is a tragedy because [the deceased worker] was a husband and father and a long time, valued employee.”

In the result, the judge allowed the appeal, overturned the finding of guilt on the training charge, and therefore set aside the fine.

Ontario (Ministry of Labour) v. Samuel, Son & Co. Limited, 2017 ONCJ 611 (CanLII)

Well-trained worker’s negligence, which was unforeseeable, caused his death: company not guilty of OHSA charge

Appeal judge reduces $250,000 fine to $80,000, and sets aside jail terms against company directors in workplace fatality

An Ontario judge has decided that a $250,000 fine against a small company, and 25-day jail terms for two company directors, were too severe.

The defendant employer was a small business with a few employees at the time of the accident.  An employee died after he fell 12 feet while attempting to retrieve merchandise in the warehouse.   The employee had not received safety training and was not wearing any safety equipment.

The employer and its two directors were charged with offences under the Occupational Health and Safety Act relating to training and fall protection.  Each of them pleaded guilty to two charges.  The court imposed a total fine of $250,000 on the company and 25-day jail terms for the directors, reasoning that a fine against the directors personally “would only cause more financial hardship”.

The appeal judge decided that the $250,000 fine against the company, and the jail terms, were “significantly out of the range of sentences regularly imposed by the courts for these types of offences and for these types of offenders”.  The fine was “demonstrably unfit”. Similarly, the trial Justice of the Peace was wrong when she reasoned that jail terms were appropriate for the directors because a fine would cause more financial hardship.  The caselaw showed that jail terms were more appropriate for defendants with prior safety convictions for whom fines had not had a deterrent effect.

The appeal judge therefore imposed a total fine of $50,000 on the company and $15,000 on each of the two directors, for a total of $80,000.  The jail terms were set aside.

Ontario (Ministry of Labour) v. New Mex Canada Inc., 2017 ONCJ 626 (CanLII)

Appeal judge reduces $250,000 fine to $80,000, and sets aside jail terms against company directors in workplace fatality

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

Appeal court upholds $270,000 fine in OHSA matter – when MOL and company agreed on $180,000

A recent Ontario appeal decision is a reminder that courts in Occupational Health and Safety Act prosecutions can award fines higher than even the Ministry of Labour prosecutor requests.

In this unusual case, both a trial Justice of the Peace and appeal judge imposed a fine that was substantially higher than what the MOL prosecutor wanted.

After a six-day trial, the defendant, an auto parts manufacturer, was found guilty on three charges under the OHSA.   The trial Justice of the Peace fined the company a total of $270,000, even though the MOL prosecutor at trial had requested a fine in the range of only $175,000 to $225,000.

The company appealed the amount of the fine, but did not appeal the convictions.  On the appeal, the company argued that the fine was not proportionate, that the trial justice placed undue emphasis on a prior conviction against the company under the OHSA, and that the fine was outside of the acceptable range.  The appeal judge rejected all of those arguments because the employer was a “substantial corporation” (two facilities with a total of 770 people) that was “within a broader group of companies”; the employer had been found guilty on three charges under the OHSA; it was proper to consider the prior conviction (which was in 2004); and the harm to the injured worker was “devastating”: he was rendered a paraplegic when a robot on which he was doing a “quick fix” pressed against him on his back.  The company’s practice was not to lock out / tag out robots when doing a “quick fix”.

Interestingly, on the appeal, the MOL prosecutor and the defence counsel actually agreed that $180,000 would be an appropriate amount for the fine.   The appeal judge effectively rejected that agreement, finding that the $270,000 fine was not “unfit”.

The appeal judge decided that a fine of $270,000 “fell within the appropriate range”. The appeal was dismissed.  The case illustrates the point that, particularly in cases of serious injury to a worker that “offends” the court, there is always a risk that the court will impose a fine that is greater than the amount that the MOL prosecutor wanted.

R. v. Matcor Automotive Inc., 2017 ONCJ 560 (CanLII)

Appeal court upholds $270,000 fine in OHSA matter – when MOL and company agreed on $180,000

Saskatchewan Court of Appeal confirms acquittal following workplace fatality in grain terminal

We previously reported on the acquittal of a Saskatchewan employer after a worker died of suffocation in a grain terminal (see our previous post here). The Saskatchewan Court of Appeal recently dismissed the Crown’s appeal of the acquittal, confirming that the trial judge made no error in finding that the elements of the charges had not been proven beyond a reasonable doubt.

One of the Crown’s arguments was that a workplace injury or death was proof or evidence of a violation of the occupational health and safety legislation. The Court of Appeal noted that this issue did not appear to be settled by the courts and referenced a recent Alberta Court of Appeal case where leave to appeal was granted regarding that same issue (see our previous discussion of R. v. Precision Diversified Oilfield Services Corp., 2017 ABCA 47 here). 

The Court of Appeal reviewed the existing case law and found that where, as in the case before it, the Crown had particularized a charge, the elements of the alleged contravention under the legislation were not necessarily established by proof of the injury or death of an employee at the workplace. While proof of an accident may be enough to establish the elements of the general charge that an employer failed to ensure the health and safety of an employee, where the Crown has particularized a charge, the Crown must prove all of the necessary elements.

In this case, the Court of Appeal agreed with the trial judge’s finding that the Crown had failed to prove the elements of the charges. The Court found that that worker had learned through his training that he was not to enter a confined space, such as the receiving pit, until he had received the necessary training and safety procedures for doing so. In addition, the usual procedure to unplug a blockage was a simple process that did not require any specific training or supervision. The trial judge had also made a finding of fact that the deceased had never been told to enter the receiving pit or unplug the blockage. He had only been told to look in the pit and so the employer was not obliged to instruct him on how to perform those other tasks. Finally, while the Court acknowledged that employers have a positive duty to ensure employees are meaningfully aware of hazards, the trial judge’s findings about the training and workplace culture of safety did not lend themselves to a finding that the employer had failed in its duties to the employee.

R. v. Viterra Inc., 2017 SKCA 51 (CanLII)

Saskatchewan Court of Appeal confirms acquittal following workplace fatality in grain terminal

Citing unfairness, court throws out criminal negligence charge against boom truck operator that was laid after his guilty plea to related OHSA charge

A boom truck operator who pleaded guilty to an Occupational Health and Safety Act charge after a workplace fatality, has had a criminal negligence charge against him stayed by the court. The boom truck toppled over, pinning a worker who died as a result.  The operator’s failure to extend the outriggers and stabilizers resulted in the boom truck toppling over.

The police and Ministry of Labour investigated.  The MOL charged the operator with offences under the OHSA.  Almost two years after the incident, the operator pleaded guilty to one OHSA charge and was fined $3,500.00.  Apparently he thought that that would be the end of the matter.

He was wrong.  Five months after the operator’s guilty plea on the OHSA charge (now more than two years after the incident), the police laid a criminal negligence charge against the operator arising from the same incident.

The court stated, at paragraph 40 of its decision:

“The evidence is clear that both the Ministry of Labour and the OPP had concluded within three days of the incident that they had reasonable and probable grounds to lay charges. The Ministry proceeded to lay charges on May 6, 2013, approximately 11 months following the incident. On April 17, 2014, approximately 11 months following the laying of the charges, the applicant pled guilty to one of the charges under the Occupational Health and Safety Act. Then on September 12, 2014, five months after the plea of guilt, the charge of criminal negligence was laid. In total, 26 months and 23 days expired from the date of the incident to the laying of the criminal negligence charge.”

The court stated that there was no reason why the police and MOL investigations could not have proceeded in tandem. The sequence in which the charges were laid was unfair to the operator. At the very least, the Crown should have given an emphatic notice to the operator that he would likely be charged criminally.  An accused person should be able to have a sense of security, when he makes a decision on a set of charges, that the decision resolves the case in its entirety.  According to the court, to have further charges laid after such a lengthy period of time and after the operator had pleaded guilty to the OHSA charge was unfair.

There was the potential for serious prejudice since the fact that he had pleaded guilty to the OHSA charge could possibly be put before the court in his criminal negligence case. Also, a witness had died in the interim.

The police’s act of laying criminal charges after the operator pleaded guilty to the OHSA charges constituted a breach of the sense of fair play, an act which offends the community. The court therefore stayed the criminal negligence charge, citing a breach of sections 7 (right to life, liberty and the security of the person) and 11(d) (right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal) of the Canadian Charter of Rights and Freedoms.

R. v Campbell, 2017 ONSC 3442 (CanLII)

Citing unfairness, court throws out criminal negligence charge against boom truck operator that was laid after his guilty plea to related OHSA charge

Company loses “non suit” application in OHSA prosecution

An Ontario company has lost its argument that an Occupational Health and Safety Act prosecution should be ended before the company called any evidence at trial.

The OHSA charge against the company resulted from a fatality at a construction site after a “curb machine” overturned while being off-loaded from a “float” trailer, crushing a worker who later died. There were no witnesses to the accident.

The charge against the company alleged that the curb machine was moved in a manner that endangered a worker.

The company argued, after the Ministry of Labour prosecutor had finished calling the prosecution witnesses, that the MOL had not proven the cause of the accident, and that as a result, the charge should be dismissed.

The Ministry of Labour argued that the prosecution need not prove the cause of the accident in order to obtain a conviction. The MOL argued that the fact that a worker died was positive evidence that a worker was “endangered”.

The court agreed with the prosecutor and decided not to dismiss the charges for a “non suit” (also called a “motion for a directed verdict of acquittal”). The court decided that there was some evidence in support of each of the elements of the charge. The worker was the driver of the flatbed trailer; the curb machine was found on top of the worker; and the curb machine was located next to the flatbed trailer. As such, the court refused to declare a “non suit”.  Instead, the court asked the company whether it would be calling any evidence or proceeding to final argument.

Ontario (Ministry of Labour) v. Cobra Float Services Inc., 2017 ONCJ 388 (CanLII)

 

 

 

Company loses “non suit” application in OHSA prosecution