In Ontario v J.R. Contracting Property Services, a manager was convicted of failing to provide adequate fall protection to a worker (read our blogs on the first two instalments of this litigation saga, blog 1, blog 2). The manager had not previously been found guilty of an offence under the Occupational Health and Safety Act. However, she had previous convictions for violations of the Environmental Protection Act, for which she had been sentenced to various intermittent prison terms, and had over $50,000 in outstanding fines. Save one small exception, she had not paid any of these. The prosecutor argued that the previous violations and the outstanding fines indicated that a stronger penalty than normal was required in order to deter the accused and denounce her actions.
The Justice of the Peace agreed.
The accused was sentenced to 45 days imprisonment to be served continuously. In addition, her company was fined $75,000, and an additional company was fined $2,000 for obstructing a Ministry of Labour inspector.
The Judge used the Regulatory Modernization Act to guide her decision on sentence. Under that Act, a court may use a defendant’s record of prior provincial offences to inform its sentencing decision, even if those provincial offences were under a different Act. The Court noted that the defendant had a long history of prior offences under the Environmental Protection Act. It also noted that those violations occurred in relation to the operation of the same business which was charged under the OHSA, which indicated to the Court that the misconduct in the current case was tied to the accused’s previous convictions.
Adding to the weight of factors favouring a stricter sentence was the total lack of respect the accused showed in respect of a serious accident that left a worker paralyzed.
Given the defendant’s record, the only punishment which the Court believed would sufficiently deter and denunciate the conduct of the accused was a strong prison sentence to be served continuously.
In many cases, offenders sentenced to jail time under the OHSA are sentenced to imprisonment to be served intermittently on weekends. Continuous sentences are viewed as considerably more onerous, and the fact that one was imposed in this case speaks to the court’s displeasure with the offender.
This case is one of the first reported examples of an individual receiving a harsher OHSA sentence as a result of convictions under a different statute. The decision serves as a reminder that a record of provincial violations is not ancient history, and can have significant consequences in future provincial offence proceedings for both individuals and companies. This judgement clearly shows that courts will have little sympathy for those who flaunt the law even in other contexts, and will impose stronger punitive measures in response to these repeat offenders.
